Citation Nr: 21015728 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-38 580 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for arthritis, including due to exposure to chemicals, is denied REMANDED Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to in-service noise exposure. 2. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is causally or etiologically related to his service. 3. Arthritis did not manifest during service, was diagnosed more than one year after service, and is etiologically not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Arthritis did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1971 to February 1978. The Veteran’s service connection claim for hearing loss was denied in August 2016, he filed a timely notice of disagreement in August 2017, a Statement of the Case was issued in April 2018. The Veteran was afforded the opportunity to present testimony during a Board hearing in December 2020 regarding his service connection claim for bilateral hearing loss. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that if VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says). Thus, the issue of timeliness in the Veteran’s substantive appeal of his service connection claim for bilateral hearing loss has been waived and the issue is before the Board. Id. at 45 (holding that the 60-day period to file a substantive appeal was not a jurisdictional bar to the Board’s adjudication of a matter, and that VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis and other organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a). Issues 1-2: Entitlement to service connection for bilateral hearing loss and tinnitus. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has had bilateral hearing loss and tinnitus since service due to his exposure to acoustic trauma during service working as a jet engine mechanic on the flight line. See December 2020 Board hearing transcript. Service treatment records do not show the Veteran met the VA regulatory criteria for bilateral hearing loss nor do the records document complaints of tinnitus. Post-service medical evidence shows that the Veteran has bilateral hearing loss. See July 2017 VA audiological examination showing 50 decibels at 3000 Hertz in both ears with a diagnosis of sensorineural hearing loss. As summarized above, the Veteran contends that he has had bilateral hearing loss and tinnitus since service. His DD 214 Form shows that his military occupational specialty was jet engine mechanic. The Veteran’s contentions are credible and consistent with the circumstances of his service. The Board has no reason to doubt the credibility of the Veteran’s contentions. Hence, there is probative evidence with regard to a nexus on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), as the Veteran has a diagnosis of bilateral sensorineural hearing loss and he is competent to report that he has experienced symptoms of bilateral hearing loss since service. As for tinnitus, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). The Board recognizes that there are unfavorable VA opinions regarding the etiology of the Veteran’s bilateral hearing loss and tinnitus including in July 2017 and September 2018. However, these opinions are of limited probative value as they are based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, the July 2017 VA opinion is based on an inaccurate factual premise as the examiner stated that the Veteran was unclear as to the onset of tinnitus, which probably occurred ten years earlier. However, the Veteran has consistently contended that he has had tinnitus since service. See, e.g., September 2018 VA audiological examination and December 2020 Board hearing transcript. The United States Court of Appeals for Veterans Claims has found that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran’s claim is essentially equal), the benefit-of-the-doubt rule applies and the claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted. 38 U.S.C. § 5107(b). Issue 3: Entitlement to service connection for arthritis including due to exposure to chemicals. The Veteran contends that he has arthritis throughout his entire body due to his military occupational specialty as a jet engine mechanic whereby he was exposed to chemicals, to include R-11, Xylene, Toluene, MEK, and jet fuel. See February 2017 statement and December 2020 Board hearing transcript. Alternatively the Veteran contends that he has arthritis due to the physical demands and wear and tear of his military service as a jet engine mechanic. See December 2020 Board hearing transcript. He also stated that after service he worked in a construction company as a crane operator. Id. The service treatment records show no complaints of, or treatment for arthritis. The January 1978 separation examination showed no abnormalities. VA treatment records show arthritis many years after service. See, e.g., January 2006 and April 2016 VA treatment records showing osteoarthritis and June 2015 VA treatment records showing arthritis in multiple sites. As a lay person, the Veteran is competent to report symptoms pertaining to his arthritis. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of arthritis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran’s arthritis is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. The Board is aware that the Veteran was not afforded a VA examination for arthritis, however the Board finds that VA ordered examinations are not warranted in conjunction with this service connection claim. In this regard, under 38 U.S.C. § 5103A(d), VA’s duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant’s service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Further, the Board notes that a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Arthritis is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran is asserting continuity of symptomatology, his assertions are outweighed by the evidence of record discussed above. Accordingly, because the preponderance of the evidence is against the claim of service connection for arthritis, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. For the reasons discussed above the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Issue 4: Entitlement to service connection for prostate cancer. The Veteran in September 2012 underwent a radical prostatectomy for prostate cancer. See August 2013 VA treatment records. As discussed above, his DD 214 Form shows that his military occupational specialty was jet engine mechanic. In December 2020 the Veteran testified that he was based in Thailand and Andersen Air Force Base in Guam. During the December 2020 Board hearing the Veteran stated that he worked on C-130 and other C-series aircrafts. Herbicide agent exposure is presumed for a veteran who performed service in the Air Force or Air Force Reserve under circumstances in which that individual regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(v). Under this presumption, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircrafts and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). Given that the Veteran served in the US Air Force as a jet engine mechanic and his service personnel records are unclear as to whether he worked on C-123 aircrafts, an attempt should be made to confirm whether his unit performed operations on C-123 aircrafts. Further, although service personnel records do not show service in Thailand, they do show service in Guam. Subsequent to the December 2020 Board hearing, that same month the Veteran’s representative submitted a 2018 GAO report indicating that Agent Orange components were used in Guam in commercial herbicides. The representative also submitted a November 2019 Pacific Island Times article regarding Agent Orange being transported and stored in Guam. The Veteran also testified in December 2020 that as a jet engine mechanic he was exposed to carcinogens such as benzenes. Thus, on remand the Veteran should be afforded a VA examination to determine the nature and etiology of his prostate cancer. The matter is REMANDED for the following action: 1. Contact the Veteran and request specific details regarding his alleged in-service herbicide exposure, to include as much detailed information as possible including the dates, unit assignment, detailed description of military duties, and contact with C-123 aircraft during the Vietnam era. 2. Afterwards take all reasonable steps to determine whether C-123 aircraft were serviced or maintained at any location in which the Veteran was stationed during his service during the Vietnam era. All steps taken to determine this information must be documented in the claims file. 3. Obtain an opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s prostate cancer. If necessary, schedule the Veteran for a VA examination. After reviewing the claims folder, the examiner is asked to do the following: Provide an opinion whether it is at least as likely as not (50 percent or better probability) that the Veteran’s prostate cancer is related to an in-service injury, event, or disease. The examiner is asked to consider that the Veteran served in Guam during the Vietnam era and submitted a 2018 GAO report indicating that Agent Orange components were used in Guam in commercial herbicides as well as a November 2019 Pacific Island Times article regarding Agent Orange being transported and stored in Guam. The examiner also is asked to consider that the Veteran contends that as a jet engine mechanic he was exposed to carcinogens during service to include R-11, benzenes Xylene, Toluene, MEK, and jet fuel. See December 2020 Board hearing transcript and February 2017 statement. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, Counsel 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.