Citation Nr: 21015234 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-11 208 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for prostate cancer, to include herbicide exposure is remanded. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss is related to an in-service injury or disease, was compensably disabling within one year of separation from active duty, or manifested symptoms continuously since service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing in December 2020 in front of the undersigned Veteran’s Law Judge. The transcript has been associated with the file. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss as a result of noise exposure serving as Military Police while in service. See fully developed claim (received 10/27/2016, pp. 2). At the December 2020 hearing he specifically cited to exposure from “small arms fire, rifle fire, large cannon fire,” and hand grenade explosions during “field exercises.” The Veteran also testified to the fact that he was not given any ear protection besides the bits of toilet paper he would place in his ears. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection, as no nexus exists between the Veteran’s bilateral hearing loss disability and his active duty service. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. As an initial matter, the January 2017 rating decision made a favorable finding that is binding on the Board. It found that the Veteran had a current disability of bilateral hearing loss. Therefore, the first element of service connection has been met. See also Audiological Examination dated November 2016. The next element of service connection requires an in-service incurrence or aggravation of a disease or injury. The Veteran asserts his current hearing loss is a result of exposure to weapons discharge, cannon fire, and grenade explosions without hearing protection while serving as a Military Police Officer. The Veteran’s military personnel records support that he was a Military Police Officer while serving on active duty. Additionally, the Veteran underwent a VA examination in which the examiner conceded that the Veteran had been exposed to gunfire that resulted in his tinnitus. As a result, the second element of service connection has been met. The question remaining before the Board is whether the current bilateral hearing loss is related to the in-service noise exposure, or alternatively whether a presumption is applicable. Presumptions During his December 2020 hearing the Veteran testified that he first noticed his hearing would come and go while in service. Service treatment records do not reflect any diagnosis or treatment for bilateral hearing loss while in service. The Veteran’s June 1965 entrance examination did not indicate any issues regarding the Veteran’s ears or hearing. The audiogram taken during the entrance examination showed normal hearing levels. Additionally, the Veteran’s separation examination in June 1968 did not show hearing loss for VA purposes. The Veteran also denied any issues regarding his ears or hearing loss at that time. In September 2016, the Veteran attended a VA outpatient appointment where he stated he suffered from “hearing loss with ringing in ears.” At this time the Veteran was using hearing aids and the examiner noted his hearing loss was “stable” with their use. However, no further assessment was made and no audiograms were taken. In November 2016, the Veteran was given a VA examination for his hearing loss. While the Veteran is shown to have hearing loss for VA purposes, the examiner stated that the Veteran had normal hearing in both ears during his entrance examination in June 1965 and separation from service examination in June 1968. Additionally, the examiner concluded there was no acquired hearing loss during the Veteran’s active duty service nor was there a report of hearing loss at the time of discharge. The examiner concluded that the Veteran’s current hearing loss “was acquired after his discharge date.” However, during the December 2020 hearing, the Veteran again asserted that his hearing loss began in service and has continued to the present. The Veteran is competent to report his observable symptoms of bilateral hearing loss. See 38 C.F.R. § 3.159(a)(2). He is also credible as his assertions have been consistent throughout the entirety of the appeal period. However, these assertions are not supported by contemporaneous medical records nor is there evidence of record to suggest that the Veteran is medically trained. The Board finds that diagnosis of bilateral hearing loss for VA purposes is too complex to be addressed by a layperson. This diagnosis is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical testing, such as the audiograms performed in service. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Hence, the Veteran's opinion, no matter how sincere, is not medically competent to diagnose bilateral hearing loss during or since service that has manifested into his current hearing loss disability. Furthermore, the medical evidence before, during, and at separation are silent for any issues regarding hearing loss or with his ears generally. As a result, his assertions are afforded little probative weight in determining continuity of symptomatology and service connection on a presumptive basis. Additionally, the first assertion of a hearing loss disability in the record is in the Veteran’s September 2016 VA outpatient record. This is about 48 years after service and about 47 years outside of the applicable presumptive period. See 38 C.F.R. §§ 3.307, 3.309. There is no evidence of hearing loss meeting the criteria for disability benefits during the first year after separation from service. While the Veteran may have credibly experienced a reduction in hearing, the competent, probative evidence does not support a finding that he had hearing loss under 38 C.F.R. § 3.385 during or within one year of service. The available evidence thus preponderates against finding manifestations sufficient to identify a chronic hearing loss in active-duty service, or within one year thereafter. Service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Similarly, the evidence of record does not show continuous symptoms of bilateral hearing loss for VA purposes since service. Thus, service connection is not warranted on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). Direct service connection The Board turns to the question of whether hearing loss is directly related to active-duty noise exposure. The Veteran was given a VA examination in November 2016. All frequencies were tested and showed hearing loss for VA purposes. The examiner diagnosed the Veteran with sensorineural hearing loss in both the left and right ears. However, the examiner also opined that the Veteran’s bilateral hearing loss was less likely than not related to in-service noise exposure. The rationale included comparison of the June 1965 entrance and June 1968 separation audiograms, from which the examiner found no significant shift in hearing. Additionally, no hearing loss was reported or shown during service or after service or for a number of years. The examiner concluded that the Veteran’s hearing loss originated after his discharge from active duty service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran asserted in his January 2021 hearing that his hearing loss began in service and continued to the present, the Board finds the contemporaneous medical evidence of record to be more probative as to the Veteran’s bilateral hearing loss. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). As noted above, a thorough review of the Veteran’s medical records does not show complaint of bilateral hearing loss until September 2016. The Board explained in the prior section that the Veteran’s assertion that his hearing loss began in service is competent and credible as to some observed reduction in hearing loss. However, as also stated above, the Veteran is not competent to provide a diagnosis or nexus opinion in this regard. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not have the medical training, expertise, or experience to provide a competent diagnosis or medical nexus opinion on this question; his opinion is not probative on this question. As a result, the only probative evidence weighs against the claim for benefits. The preponderance of the evidence is against finding that bilateral hearing loss is related to an in-service injury or disease, were compensably disabling within a year of separation from active duty, or that symptoms were continuous since service. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include herbicide exposure The Veteran asserts that his current prostate cancer is a result of exposure to toxic chemicals to include harsh defoliants. During the December 2020 hearing, the Veteran testified that he served as a Military Police Officer in Panama during active service. He further stated his duties included providing security at the ammo and chemical dump location in Fort Clayton. The Veteran testified that on several occasions, he witnessed people dressed in “yellow rubbery type overalls placing unmarked 50-gallon drums in the chemical section of the ammo dump.” He also observed workers spraying “unknown chemicals in and around the boundaries of Fort Clayton and Fort Amador” and within a few days, the Veteran stated, the surrounding area that was sprayed was free of jungle foliage. The Veteran also recalled being on “jungle duty” with the Military Police when he came across a “light mist” or “fog.” The Veteran stated almost immediately after he returned to Fort Clayton and fell ill. He was diagnosed with erysipelas and was admitted to the hospital for 8 days. He stated his entire body was blistered and “to this day [he] still [has] those effects.” The Veteran further asserts he has had issues regarding his feet, hands, and face since this occurrence. Additionally, in the hearing the Veteran reported having prostate issues while in service and since service, to include frequent urination. However, the Veteran stated when he reported those symptoms, he was told to reduce his fluid intake and the issue was dismissed. The Veteran’s statements, made under oath, are competent and credible evidence of an injury in service, namely exposure to some kind of chemical defoliant. His report of prostate symptoms beginning in service is sufficient to indicate a possible nexus, triggering the duty to assist by providing a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his prostate cancer. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s prostate cancer at least as likely as not related to service, including exposure to a chemical defoliant while in service? The examiner should consider the Veteran’s lay statements made during the December 2020 hearing regarding his exposure to chemicals and chemical defoliants while in service, hospitalization, and onset of prostate symptoms in service. (Continued on the next page)   Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.