Citation Nr: 21015765 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-21 721 DATE: March 18, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran did not undergo an in-service event, injury or disease as to his bilateral hearing loss. 2. The Veteran did not undergo an in-service event, injury or disease as to his tinnitus. 3. The Veteran did not serve in the Republic of Vietnam. 4. The Veteran’s duties did not place him on or near the perimeter of Utapao Royal Thai Air Force Base. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a); 38 C.F.R. § 3.303(d). 2. The criteria to establish entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154(a); 38 C.F.R. § 3.303(d). 3. The criteria to establish entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1154(a); 38 C.F.R. §§ 3.303(d), 3.307 (a)(6)(iii). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from October 1971 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Houston, Texas Regional Office (RO). In January 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In February 2018, the Board reopened and denied service connection for all three claims. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In a May 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the Board decision that denied service connection for the claims and remanded the Veteran’s appeal to the Board. In November 2019, the Board remanded the appeal to the RO for consideration of the new and material evidence on the merits in the first instance. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Bilateral hearing loss and tinnitus The Veteran asserts having been exposed to military acoustic trauma as an “Alert Controller” working next to a flight line, without hearing protection, in close proximity to B-52s and KC-135s for over one year during active service. The claim will be denied because the Veteran did not undergo an in-service event, injury or disease as to his bilateral hearing loss and tinnitus. Service treatment records (STRs) are silent for complaints or contemporaneous reports pertaining to exposure to acoustic trauma and/or trouble with hearing. In his March 1974 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once hearing loss. In the Veteran’s March 1974 pre-separation medical examination, no neurological abnormalities were noted and the audiogram revealed no bilateral hearing loss for VA purposes. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). The Veteran’s report of separation from the armed forces (DD Form 214) reflects that his duty specialty was Administrative Specialist. The Veteran’s military personnel records (MPRs) reflect that the Veteran worked in an office environment and that he was trained as an administrative clerk. Specifically, the Veteran’s airman performance reports indicate that he maintained filing and alert rosters and performed telephone watch duties. There is nothing in the Veteran’s MPRs to suggest that he was exposed to acoustic trauma during the course of his duties as he has alleged. The Veteran has not substantiated having been exposed to military acoustic trauma. 38 U.S.C. § 1154(a). In a March 2005 VA treatment record, the Veteran reported experiencing tinnitus and that he was exposed to aircraft noise during service. As noted above, the Veteran’s assertion of exposure to in-service acoustic trauma has not been substantiated. In December 2013, the Veteran was afforded a VA hearing loss examination. The Veteran was diagnosed with tinnitus and bilateral hearing loss for VA purposes. However, the examiner provided a negative etiology opinion. In February 2017, the Veteran underwent a non-VA audiological examination. The Veteran was diagnosed with tinnitus and bilateral hearing loss for VA purposes. The examiner opined that the Veteran’s tinnitus and bilateral hearing loss was caused by service due to the Veteran’s exposure to high decibel levels of noise. However, the examiner indicated that he did not review the Veteran’s STRs. The non-VA medical opinion is of low probative value because the examiner relied on the Veteran’s unsubstantiated assertion of having been exposed to military acoustic trauma. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). A preponderance of the evidence is against a finding that the Veteran underwent an in-service, event, injury or disease as to his bilateral hearing loss and tinnitus. STRs are silent for complaints or contemporaneous reports pertaining to exposure to acoustic trauma and/or trouble with hearing. MPRs reflect that the Veteran worked in an office environment and that he was trained as an administrative clerk. The Veteran has not substantiated having been exposed to military acoustic trauma. Therefore, service connection is not warranted and the claims are denied. Prostate cancer VA’s Compensation and Pension Service has determined that a special consideration of herbicide agent exposure on a factual basis should be extended to Air Force Veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFBs) anytime between February 28, 1961, and May 7, 1975. The listed Thai military facilities include Utapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFBs. If a veteran's military duties, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, placed him or her near the air base perimeter, then VA is to concede herbicide agent exposure on a direct or facts found basis. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran asserts having been in Utapao, Thailand for three weeks in March 1972 and that his duties placed him near the air base perimeter due to checking on airplanes and socializing with military personnel walking along the perimeter. As noted above, the Veteran was an administrative clerk and as such, his duties would not have plausibly entailed checking on aircraft nor socializing with military personnel. The Veteran also asserts having been in Vietnam to unload barrels, crates and ammunition from KC-135s. The claim will be denied because the Veteran’s account of an in-service event, injury or disease is not credible. Contrary to the Veteran’s assertion, a March 1972 service travel voucher indicates that the Veteran arrived, via government plane, in Utapao, Thailand on March 14, 1972 at 1735 (5:35 p.m.) and departed 2150 (9:00 p.m.) that same day. The travel voucher indicated that the Veteran did not use government quarters during his brief stay in Utapao and the voucher was silent as to whether the Veteran departed from or arrived in Vietnam. As noted above, the Veteran’s duties involved administrative work maintaining alert rosters and other office duties. There is no corroboration for his account that his duties placed him near the air base perimeter or having been assigned to loading and unloading cargo from aircraft. In an April 2013 response, the Joint Services Records Research Center (JSRRC) indicated based on a review of the Veteran’s STRs and MPRs, that the Veteran was in Utapao, Thailand for less than one day and that there was no evidence of a claimed incident of herbicide agent exposure during the Veteran’s stay in Utapao. Having established a proper foundation, the Board finds that it is reasonable to infer, due to an absence of documentation, that the JSRRC finding is competent and credible evidence that the Veteran was not exposed to herbicide agents in Utapao. Fountain v. McDonald, 27 Vet. App. 258 (2015). In an October 2019 statement, the Veteran asserted having been sent from Okinawa in February 1972 to Utapao for seven days. As noted above, the Veteran is not credible in his account as to the time spent in Utapao because the Veteran’s March 1972 service travel voucher reflects that the Veteran was in Utapao for approximately four hours. Significantly, the Veteran has not provided additional evidence to substantiate as to whether his duties placed him on or near the Utapao air base perimeter. (Continued on next page) A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury or disease as to his prostate cancer. The Veteran is not credible as to his account that his duties placed him near the air base perimeter in Utapao, Thailand and having been in Vietnam. The Veteran’s service travel voucher revealed that he spent approximately four hours in Utapao with no record of travel into or from Vietnam. The Veteran’s duties as an Alert Force Controller in March 1972 did not place him near the Utapao base perimeter because his duties generally involved filing and maintaining documents. A JSRRC response revealed no evidence of herbicide agent exposure during service. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, Associate 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.