Citation Nr: 21024759 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-40 180 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss was at least as likely as not caused by the chemotherapy he received for his service-connected urothelial carcinoma (bladder cancer). CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from September 1968 to September 1972. His service personnel records establish that he had boots-on-ground service in the Republic of Vietnam from December 30, 1970, to December 30, 1971. As a result, exposure to herbicides has been conceded. See August 2020 Rating Decision. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). The facts in this case are somewhat unique. The Veteran has admitted that his hearing loss did not have its onset in service and continue since and there is audiological evidence to support this. However, a November 2019 VA examination report confirms a current diagnosis of bilateral hearing loss. Therefore, the first element of service connection has been met. The Veteran is currently service-connected for urothelial carcinoma (bladder cancer) that had spread to the prostate (claimed as prostate cancer). By a March 2021 rating decision, the RO severed service connection effective June 1, 2021, on the basis that “the evidence of record shows that you have urothelial cancer which has spread to the prostate. [This] is not a condition that is subject to presumptive service connection.” As noted by the RO, the Veteran has submitted private medical evidence indicating primary malignant neoplasm of the bladder and secondary malignant neoplasm of prostate. On January 1, 2021, the National Defense Authorization Act for FY 2021 became law. One section of the law added three diseases to the list of those presumed service connected in veterans exposed to herbicide agents. Specifically, the law adds to 38 U.S.C. § 1116(a)(2), which currently lists diseases in subparagraphs (A) through (H), the following: (I) Parkinsonism; (J) Bladder cancer; (K) Hypothyroidism. This new law was not in effect when the RO proposed to sever service connection. See August 2020 and October 2020 Rating Decisions. However, the new law allows for presumptive service connection for bladder cancer effective January 1, 2021. Because the Veteran is still within the timeframe to appeal the March 2021 rating decision and service connection has not yet been severed, the Board will proceed to treat his bladder cancer as service-connected. In so doing, the Board wishes to note that the Veteran must appeal the March 2021 rating decision in order for the RO to adjudicate whether or not severance was warranted in light of the new law. If the Veteran does not appeal this decision within one year, the RO’s findings will become final. In December 2020, the VA examiner found that the Veteran had “a significant history of cancer with chemotherapy treatment using carboplatin chemotherapy, which is known to cause hearing loss.” A review of the Veteran’s VA treatment records confirm he was administered carboplatin chemotherapy for his bladder cancer. Therefore, resolving all reasonable doubt in his favor, the Board finds that service connection for bilateral hearing loss is warranted as secondary to his currently service-connected urothelial carcinoma (bladder). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.