Citation Nr: 21009301 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-05 144 DATE: February 22, 2021 ORDER Entitlement to service connection for lung cancer is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran does not have any service in Vietnam and the Veteran does not have any service in Korea between April 1, 1968, and August 31, 1971, in or near the Korean DMZ. 2. The Veteran’s cancer did not have its onset during active service or within one year of discharge and is not otherwise etiologically related to active service. 3. The Veteran does not meet the basic eligibility for TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cancer (including lung cancer) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from December 1965 to October 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision and a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the Veteran’s claim for hearing loss for development including a new VA examination. The Veteran was afforded a new VA examination in January 2020 as to his hearing loss claim. In June 2020, a Supplemental Statement of the Case (SSOC) was issued as to the Veteran’s hearing loss claim and the claim was returned to the Board. Also, in June 2020, a SSOC was issued as to the Veteran’s other claims for service connection for cancer and TDIU. These claims have come before the Board for the first time. 1. Entitlement to service connection for cancer, including lung cancer The Veteran contends that his cancer was caused by exposure to an herbicide agent during active military service in Korea. The Veteran primarily reported cancer of the left lung, but he also reported adrenal gland, left kidney, and left upper stomach metastases. The Veteran said that he saw herbicide agents being sprayed while he was in Korea. He also stated that he worked near the hangers or flight lines where the chemicals were sprayed because he was an air crewman. See Form 9 received May 2020, VA 21-4138 Statement in Support of Claim received January 2020, Correspondence received October 2019. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Also, veterans who served in or near the Korean DMZ between April 1, 1968 and August 31, 1971 are presumed to have been exposed to certain herbicide agents. Id. In such a case, a Veteran’s service connection for certain diseases will be presumed if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Except as otherwise provided by law, a Veteran or other claimant has the responsibility to support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information, including lay and medical evidence, of record in a case before the Secretary, with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. First, the Board considered whether service connection was warranted on a presumptive basis. While all veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the Veteran’s service personnel records do not show that he served in Vietnam. The Veteran also did not report any service in Vietnam. Rather, the Veteran only reported service in Korea. The available records show that he served in Korea from around 1966 to 1967. See Military Personnel Records received June 2016. The Veteran’s service in Korea occurred prior to April 1968. In Addition, the Veteran’s records do not note service near the Korean DMZ. See Military Personnel Records received January 2020, and June 2016. While the VA has attempted to obtain any available information about the Veteran’s time in the service, the evidence preponderates against a finding that the Veteran had any service in Vietnam or that he had any service in or around the Korean DMZ from April 1, 1968 to August 31, 1971. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board has a duty to weigh all the evidence in the claim. As to this claim, the preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicide agents by having any service in Vietnam or in or around the Korea DMZ during the relevant period. Consequently, presumptive service connection for lung cancer is not warranted. Moreover, service connection is not warranted for cancer on a direct basis either. The Veteran’s cancer did not begin in service. The service treatment records fail to reflect any findings attributable to cancer for the time the Veteran was in the military. The first treatment was not within one year of separation, but rather, decades after service. For example, the Veteran was diagnosed with lung cancer in 2017. See C&P Exam received January 2018. This was several decades after separation from active duty. Additionally, the records do not show continuous symptoms since service. The Veteran also reported a history of smoking. Id. The Veteran does have a current disability as he has ongoing treatment for cancer within the period of this claim. See C&P Exam received January 2018. However, the evidence does not support that the Veteran’s current disability has any link to his service. While the Veteran reported that his VA doctor told him that his cancer was linked to service, the records do not show that this is the case. It also does not appear that the Veteran’s medical provider at the VA provided any opinions in his treatment records. The Veteran’s provider may have also presumed the Veteran had service in Vietnam during the Vietnam Era or around the Korean DMZ from April 1, 1968 to August 31, 1971, which the Veteran does not have. The Board recognizes that the Veteran might sincerely believe that his cancer was related to his service in Korea. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. As there is no competent or probative evidence that the Veteran’s cancer stemmed from his active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger a VA opinion, pursuant to VA’s duty to assist, a VA opinion is not required for every claim filed. See McLendon v. Nicholson, 20 Vet. App. 79 (U.S. 2006). Here, there is no credible evidence of a present diagnosis related to active duty service other than the Veteran’s lay statements, which have been considered. As noted above, these statements while considered, are not competent to provide a link with service. Therefore, the RO did not err in its duty to assist by failing to provide a VA opinion. In the absence of any in-service findings of cancer, and in the absence of a competent medical opinion linking his current lung cancer to service, the Board finds that a preponderance of the evidence weighs against the claim. Based on the foregoing, the claim of entitlement to service connection for cancer is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to TDIU The Veteran contends that he is unable to work due to cancer. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability received November 2017. He explained that he had poor concentration, poor appetite, and weakness. The Veteran also reported that he was unable to drive a vehicle. See VA 21-526EZ received November 2017. After a thorough review of the evidence, the Board concludes that the Veteran does not meet the basic eligibility requirements of TDIU. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. While the Veteran has alleged service connection for cancer, as discussed above the disability has not been linked with his service. The Veteran has a disability rating of 10 percent since May 20, 2016 for tinnitus. The Veteran’s single service-connected impairment is less than 60 percent. Therefore, the Veteran does not meet the basic eligibility for TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since, the Veteran did not meet the requirements of schedular TDIU, the preponderance of the evidence weighs against the claim. Therefore, the claim for TDIU is denied. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss Although further delay is regrettable, a remand is necessary for an adequate VA audiological opinion. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board finds that the RO did not substantially comply with the remand for the following reasons. In the January 2019 Board remand, the Board noted the Veteran’s hearing tests during service were both prior to November 1967. Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In this case, based on the date of the Veteran’s service entrance and exit examinations, there is an assumption that the testing method was ASA units. The results have been converted to ISO-ANSI standards in this decision to facilitate data comparison. The December 1965 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 For ISO add (+10) (+10) (+10) (+5) RIGHT 5 (15) 0 (10) 0 (10) 5 (10) LEFT 5 (15) 0 (10) 5 (15) 5 (10) The August 1967 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 For ISO add (+10) (+10) (+10) (+5) RIGHT 5 (15) 10 (20) 5 (15) 5 (10) LEFT 10 (20) 5 (15) 0 (10) 5 (10) The August 2016 examiner did not appear to address the shifts of acuity thresholds found in the service treatment records. The shifts should be considered and directly addressed even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the examiner found a history of occupational noise exposure. A November 2015 VA audio treatment showed the Veteran denied occupational and recreational noise exposure. The January 2019 Board remand stated that the examiner must specifically address: 1) the Veteran’s assertions of an in-service noise exposure, 2) the shifts of acuity thresholds contained in the Veteran’s service treatment records, and 3) the Veteran’s denial of post service noise exposure. See BVA Decision received January 2019. The January 2020 VA examiner opinion stated that the Veteran’s hearing loss was not related to his service. He stated that a review of the records shows that hearing was within normal limits both at enlistment and again at the time of separation. The examiner stated that any hearing loss developed after military service. The examiner stated that medical literature does not support delayed hearing loss so many years later. See C&P Exam dated January 2020. The examiner did not address the threshold shifts contained in the Veteran’s service treatment records, in service noise exposure, or the Veteran’s denial of noise exposure after service, as required by the January 2019 remand. Thus, the Board finds that the RO did not substantially comply with the remand and another medical opinion is required. See Stegall, 11 Vet. App. 268 at 271. The matters are REMANDED for the following action: 1. Request a VA audiological opinion to determine the nature and etiology of the Veteran’s current bilateral hearing loss. Following review of the claims file, the examiner should answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral hearing loss was incurred in or is otherwise related to active service? Please discuss the Veteran’s thresholds shifts contained in the Veteran’s service treatment records, after the Veteran’s hearing results are properly converted to ISO-ANSI standards. Please also consider the Veteran’s reported in-service noise exposure as discussed in the August 2016 VA audiological examination, and the Veteran’s denial of post service noise exposure. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.