Citation Nr: 21026588 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-08 225 DATE: May 3, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. REMANDED Entitlement to service connection for chronic lymphocytic leukemia, to include as due to Agent Orange exposure, is remanded. FINDING OF FACT The Veteran's current bilateral sensorineural hearing loss for VA purposes is related to his military noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Additionally, the undersigned granted a 60-day extension for the Veteran to submit a nexus statement from his medical providers. The Board notes that additional evidence was added to the record. The Veteran filed an article about noise exposure in the military, a private positive nexus opinion for his bilateral hearing loss disability, and a positive nexus opinion for his leukemia disability. The Veteran waived consideration from the Agency of Original Jurisdiction. See 11/13/2020 VA Form 21-4138. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for bilateral sensorineural hearing loss. A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, and as such are enumerated chronic diseases. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309. The auditory 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). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends service connection for bilateral hearing loss. Specifically, the Veteran testified that he experienced hearing loss right after he separated from active service. Additionally, he testified that he was exposed to high noise in-service in the firing range and from working on vehicles as a mechanic. Further, the Veteran's wife testified that she noticed the Veteran's hearing loss. See 10/26/2020 Hearing Transcript, at pages 3, 4, and 5. Additionally, the Veteran asserted that he was exposed to noise from tanks firing at close range and others target practicing while he was working on tanks. Further, the Veteran asserted that his tent was right next to the firing range of the tanks. See 4/9/2014 VA Form 21-4138. A June 2014 VA examination shows that the Veteran has a bilateral sensorineural hearing loss disability for VA purposes per 38 C.F.R. § 3.385. The report reflects diagnoses of sensorineural hearing loss, bilaterally. See 6/3/2014 CAPRI. As mentioned above, the Veteran asserts that his hearing loss is related to unprotected exposure to hazardous noise from artillery weapons while he was working on tanks and while he was in his tent right next to the firing range. Military records indicate that the Veteran's military occupational specialty (MOS) was vehicle repair mechanic. See 10/2/2014 Certificate of Release or Discharge from Active Duty. Regarding the in-service incident, as mentioned above, the Veteran testified that he was exposed to high noise in-service in the firing range and from working on vehicles as a mechanic. Additionally, the Veteran asserted that he was exposed to noise from tanks firing at close range and others target practicing while he was working on tanks. Further, the Veteran asserted that his tent was right next to the firing range of the tanks. See 10/26/2020 Hearing Transcript, at pages 3, 4, and 5; see also 4/9/2014 VA Form 21-4138. The Veteran's reports of military noise exposure are consistent with his MOS of vehicle repair mechanic. Based on the Veteran's reports and the Veteran's MOS, the Board finds exposure to hazardous noise in service to be consistent with the places, types, and circumstances of such service. Exposure to hazardous noise in service is established. The June 2014 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure. As rationale, the examiner cited that hearing loss due to noise occurs during the exposure and that there was no evidence that the Veteran sought treatment for hearing loss in-service. See 6/3/2014 CAPRI. However, the VA examiner did not consider the Veteran's service treatment records or the above-mentioned statements from the Veteran, which the Board deems credible. Therefore, the Board finds this opinion inadequate and thus, gives it little weight. Additionally, the Veteran underwent another VA examination in January 2018. See 1/3/2018 C&P Examination. However, the reviewing clinician did not provide an opinion about the relationship between the Veteran's bilateral hearing loss and service. Furthermore, the Veteran filed a private positive nexus opinion. As rationale, the clinician opined that the Veteran's hearing loss disability was due to military noise exposure, since his MOS had very strict hearing protection protocols in place. See 11/13/2020 Medical Treatment Record Non-Government Facility. The Board gives great weight to this opinion as it considered the complete record, to include the Veteran's service treatment record. Based on the above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran's bilateral sensorineural hearing loss began and has continued since service. 38 C.F.R. §§ 3.102, 3.303(b), 3.309. Service connection for bilateral hearing loss is therefore warranted. REASONS FOR REMAND Service connection for chronic lymphocytic leukemia. The Veteran contends service connection for leukemia. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The record showed that the Veteran was diagnosed with chronic lymphocytic leukemia. See 11/21/2017 Medical Treatment Record Non-Government Facility, at page 12; see also 12/15/2019 CAPRI, at page 16. Regarding the in-service incident, the Veteran testified that his current disability is the adverse effects which resulted due to in-service Agent Orange exposure. Specifically, the Veteran asserted that he was exposed to Agent Orange while he was stationed in Fort Knox in 1966. See 5/7/2014 VA Form 21-526b; see also 10/26/2020 Hearing Transcript, at page 9. However, the Veteran's reported in-service incident could not be verified. A memorandum from the Department of Defense showed that Agent Orange was not transported through, used, tested, stored, or disposed of on Fort Knox during the stated period. See 11/20/2017 Third Party Correspondence. The Veteran filed an article about Agent Orange in Fort Knox in 1945, indicating it was used there as part of a special project known as Sphinx to investigate the use of chemical agents for increasing the flammability of vegetation prior to flame attack. See 11/20/2014 VA Memo. Further, the Veteran filed a prior Board decision for another Veteran that indicates that evidence in that case reflected the use of other herbicides, pesticides, and insecticides at Fort Knox. See 11/20/2014 Court Documents General. While the prior Board decisions are not binding on current decisions, the Board finds that this decision raises the possibility that the Veteran was exposed to herbicide agents, pesticides, and insecticides that could be the cause of his claimed disability. As such, a remand is necessary to determine if the Veteran was exposed to herbicide agents, pesticides, or insecticides while he served at Fort Knox. The Board finds the Veteran to be credible in describing his in-service incident as they are consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran's lay reports of symptoms). Additionally, the record shows a positive nexus opinion from M.W., M.D., which links the Veteran's leukemia with exposure to Agent Orange exposure during active service. See 11/18/2020 Medical Treatment Record Non-Government Facility. However, this opinion only contains a scant rationale, so it is not enough to put these matters into equipoise on the last service connection element. Thus, in this matter, a remand is necessary to obtain a VA examination and opinion. In this regard, the record showed that the Veteran has been diagnosed with leukemia. Additionally, the Veteran submitted competent and credible lay evidence of his in-service exposure to Agent Orange while stationed in Fort Knox. Also, of record is an opinion from Dr. M.W., which suggests a relationship between his leukemia disability and service. Therefore, the Veteran is to be afforded a VA examination to determine the nature and etiology of the Veteran's chronic lymphocytic leukemia disability. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received should be associated with the claims file. Also, inform the Veteran that the opinion from M.W., MD, could be supplemented, to include noting the evidence and/or medical literature reviewed and thoroughly explaining how the conclusion was reached. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 38 U.S.C. § 5103A (b)(2); 38 C.F.R. § 3.159(e). 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, pesticides, and insecticides at Fort Knox. It is noted that development has been done regarding the presence of Agent Orange at Fort Knox (from approximately May 1966 see 5/19/2014 Military Personnel Record, at 1). This instruction deals with other herbicide agents, pesticides, and insecticides. Verification attempts and responses are to be clearly documented in the claims file. 3. After completion of step # 1 and 2, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's leukemia disability. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: Whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's current leukemia disability is related to an in-service injury, event, or disease. **In formulating the above opinion, the examiner is to consider the Veteran's competent lay statements that his current disability is the adverse effects which resulted due to in-service exposure to Agent Orange. Specifically, the Veteran asserted that he was exposed to Agent Orange while he was stationed in Fort Knox in 1966. See 5/7/2014 VA Form 21-526b; see also 10/26/2020 Hearing Transcript, at page 9. Additionally, the examiner is to consider the article about Agent Orange in Fort Knox in 1945 filed by the Veteran. See 11/20/2014 VA Memo. Further, the examiner is to consider the positive nexus opinion from Dr. M.W., M.D. See 11/18/2020 Medical Treatment Record Non-Government Facility.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.