Citation Nr: 21024638 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-21 781 DATE: April 23, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. There is no disability manifested as prostate cancer. 2. The Veteran does not have bilateral hearing loss in the right or left ear for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1970 to December 1971, including service in the Republic of Vietnam from October 1970 to October 1971. The Veteran died in June 2013. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in October 2018 for further development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 1. Entitlement to service connection for prostate cancer. The appellant contends the Veteran’s prostate cancer is the result of exposure to herbicides from service in Vietnam. Specifically, the Veteran stated evidence of prostate cancer was found when his bladder, prostate, and urethra was surgically removed. See September 2012, VA Form 21-4138. The Board finds that the service connection for prostate cancer is not warranted. Here, service treatment records and the Veteran’s post-service medical records reveal no findings or a diagnosis of prostate cancer. Further, there is no competent evidence showing that the Veteran had prostate cancer at any time during the appeal period. Indeed, a 2012 surgical pathology report indicated the Veteran’s prostate was without evidence of malignancy. April 2012, Private treatment record. The Board acknowledges the Veteran’s lay statement that he had prostate cancer; however, as a layperson without the appropriate expertise, the Veteran cannot offer a competent opinion on the diagnosis of a disorder such as prostate cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the competent evidence shows no a diagnosis of prostate cancer, service connection for prostate cancer must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have not been met. The Veteran’s DD Form 214 shows that his military occupational specialty was general field artillery. In this case, the Board concedes that the Veteran was exposed to acoustic trauma during active service. 38 U.S.C. § 1154(a). Service treatment records (STRs) include audiograms taken in December 1969 and December 1971. Notably, the December 1969 pre-induction audiogram found puretone thresholds, in decibels (dB), of 25 dB at 4000 Hertz (Hz) for the right ear and 40 dB at 4000 Hz for the left ear. The December 1971 separation audiogram found puretone thresholds of 40 dB at 4000 Hz for the right ear and 20 dB at 4000 Hz for the left ear. Thus, the Veteran’s left ear hearing improved while his right ear hearing declined. See STRs dated December 1969 and December 1971. In March 2012, VA received the Veteran’s initial service connection claim for hearing loss. The Veteran did not indicate he was receiving treatment or make any lay statements concerning hearing loss beyond requesting compensation for same. See March 2012, VA Form 21-526. In June 2013, VA requested a VA examination for hearing loss, but the Veteran died before the examination could be performed. The claims file does not have any post-service audiology reports or audiograms. Based on the Board’s review of the evidence, service connection for bilateral hearing loss is not warranted. Here, there is no evidence of a current right or left ear hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385, and the December 1971 audiogram is not demonstrative of a current hearing disability as the claim for VA compensation was filed in March 2012. The Board further notes the Veteran and appellant are not competent to show that the Veteran had a hearing loss disability pursuant to 38 C.F.R. § 3.385. Thus, despite the Veteran’s assertion that he had current hearing loss in the March 2012 VA Form 21-526, there is no objective audiometric evidence available in the record to demonstrate a current right or left ear hearing loss disability for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Thus, service connection must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.