Citation Nr: 21027205 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 20-19 026 DATE: May 5, 2021 ORDER Entitlement to service connection for prostate cancer as secondary to herbicide exposure is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and credible evidence indicates the Veteran had stopovers in the Republic of Vietnam during his service; resolving all reasonable doubt in his favor, he is presumed to have been exposed to herbicides during his active military service. 2. The evidence is in equipoise as to whether the Veteran's bilateral hearing loss disability is etiologically related to noise exposure in service. 3. The evidence of record establishes that the Veteran's tinnitus is proximately caused by service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer as due to exposure to herbicide agents are met. 38 U.S.C. §§ 1110, 1131, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1962 to October 1966. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision, dated March 2018, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO denied service connection for prostate cancer (Agent Orange Presumptive), bilateral hearing loss, and tinnitus. The Veteran timely appealed. A Board video hearing was held in October 2020. The hearing transcript has been associated with the Veteran's file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases, including tinnitus and sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for prostate cancer as secondary to herbicide exposure Veterans who served in the Republic of Vietnam are presumed to have been exposed to certain herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.313. Certain diseases enumerated at 38 C.F.R. § 3.309(e), including prostate cancer, are presumed to be related to herbicide agent exposure and therefore service connection may be granted on a presumptive basis for these diseases. 38 U.S.C. §§ 1112, 1116; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends he has prostate cancer due to herbicide exposure. As noted above, prostate cancer is presumptively service-connected when herbicide exposure is established. Therefore, the questions before the Board are whether the Veteran has a current disability of prostate cancer and whether he had service in the Republic of Vietnam. In an October 2017 VA examination, it was noted that the Veteran had a diagnosis of prostate cancer that was diagnosed in January 2017, which was still active. Therefore, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. In a February 2018 statement in support of claim, the Veteran provided, In 1966...I was subject to being assigned TDY, as a 274 (Command Post Specialist). Because of this designation, I carried additional crew member orders, so that I could ride on any military aircraft to wherever my specialty was needed. During my tour...I would believe that these planes, and therefore myself, was exposed to residual defoliants. As I was flying to and from Kadina AFB on Okinawa, I was in these planes and on the ground, in danger, at both Da Nang and Tan Son Knut. I do not remember the exact dates of flying into and out of Vietnam or the dates when I was in the airplanes that were returning to base from Vietnam. In a September 2018 lay statement, the Veteran's sister in-law provided a statement discussing how she remembered hearing the Veteran's wife discuss how the Veteran had flown into Vietnam while in service. In a September 2018 lay statement from the Veteran's sister she wrote, I don't understand why, he was indeed in Vietnam on at least two separate occasions that I remember. He was not stationed there but made stops there on his way from and to Okinawa...[he] was assigned temporary duty in Okinawa. I do not remember how long the temporary assignment was but it seems to me it was several months. The best I can figure out is that this must have been about 1965. He had to catch rides to and from Okinawa on Air Force planes that were going to several different places, which meant he made several stops. Our family remembered this well because we have often talked about it because of the 'round the world' trip he had to take to make these trips. And, because, we were all so thankful that he arrived and left Vietnam safely...Of course the ones I remember most were his stops in Vietnam, because this worried all of us since the Vietnam War was very active at that time...When I asked my brother recently he said he was designated as a crew member to make those trips. In a September 2018 memorandum, the Defense Finance and Accounting Service noted that they were unable to comply with the Veteran's request for active pay records as the records were only required to be maintained for six years and three months from the date of separation. In an October 2018 lay statement from the Veteran, he provided, From Guam, we found a flight going to Kadina via Saigon, Viet Nam. We deplaned at Ton Son Knut until the plane was unloaded and refueled. We then flew to Kadina AFB. When it was time to leave Kadina, we caught a plane going to Tachikawa AFB, Tokyo, Japan through Da Nang, Viet Nam. Again, we hung around the flight line until the plane was ready to go to Tachikawa. From there, we caught a flight to Clark AFB in the Philippines and then we flew to Anchorage, Alaska. As there was no timely flight to McChord, we were sent vouchers to fly commercial. Upon returning to McChord, I filled out all the required documents to get TDY pay, all travel expenses and combat pay as I had landed in Viet Nam. Unfortunately, the U.S. Government only kept those records for six years, three months from the date of separation, so they are not available. At the time I filled out all of these travel documents, I also signed the Affidavit that I was eligible for the VNSM because I was in the country, not just support for the war effort. In an October 2018 lay statement from the Veteran's wife, she reported, In 1966, he was given TDY orders to Kadina AFB in Okinawa. He told me in his letters he first went to Travis AFB in California and from there, was unable to get a direct military flight to Kadina, so he caught "hops" as an Additional Crew Member to Wake Island, Guam, then into Saigon before finally getting to Kadina. He told of waiting around the flight line while the plane was unloaded and refueled. When his TDY assignment was over, he again had to take round about flights to return to McChord, by taking flights through DaNang, VietNam, Tachikawa AFB, Tokyo, then to Clark AFB in the Philippines and into Anchorage, Alaska and then taking a commercial flight into McChord. In his October 2020 hearing, the Veteran testified that in the process of the short-notice TDYs, he ended up flying into Da Nang to switch planes and when he got out of the plane he was on the ground in Vietnam before he got onto the next plane to go to Okinawa. The Veteran's service personnel records confirm the Veteran's TDY to Okinawa. Based on the competent and credible lay evidence of record and the service personnel records, the Board finds that the Veteran had TDY that included stopovers in the Republic of Vietnam and was therefore exposed to herbicides while in service. The claim of entitlement to service connection for prostate cancer is granted on a presumptive basis. 2. Entitlement to service connection for a bilateral hearing loss disability The Veteran claims entitlement to service connection for a bilateral hearing loss disability. Following a thorough review of the Veteran's medical records, the Board finds that he is entitled to an award of service connection. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. The Veteran was provided a VA audiological examination in October 2017, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 35 45 60 LEFT 35 45 45 50 60 Speech audiometry revealed speech recognition ability of 100 percent in both ears. These values meet the criteria for a bilateral hearing loss disability under 38 C.F.R. § 3.385. The Veteran was provided a private audiological examination in December 2020, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 45 65 70 LEFT 40 50 55 60 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. These values meet the criteria for a bilateral hearing loss disability under 38 C.F.R. § 3.385. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Veteran contends that he was exposed to hazardous noise in service. In his April 2020 Form 9, the Veteran contended, "I flew on Air Force transports which were not sound insulated and I worked on the flight line. I experienced aircraft engine noise without protection during the regular performance of my military duties." During his October 2020 hearing, he testified that his main profession while he was in service involved aircraft. He reported that he had very limited hearing protection while in service. The first three years in service, he was in security services. His last year he was in MATS (phonetic), which was flight line-related work. He worked for a military air transport getting planes in and out of the base. He clarified that the source of the noise exposure while in service was the initial arms exposure in basic training without hearing protection and his job on the flight line which also included riding in the aircraft. He did not have hearing protection while performing this job. See Hearing Transcript dated October 2020. The Board finds these reports from the Veteran competent and credible. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection: evidence of an in-service disease or injury. Turning next to evidence of a causal relationship between the present disability and noise during service, the Board finds the weight of the evidence is in equipoise. The Veteran has asserted that he began experiencing symptoms of hearing loss while in service. The audiological evidence in the Veteran's service treatment records (STRs) show that the Veteran's hearing was within normal limits throughout the duration of his service. Additionally, when asked if he had or had ever experienced "hearing loss" in reports of medical history in the Veteran's STRs, he answered "no." The Veteran did not complain of or receive treatment for a bilateral hearing loss disability during his time in service. A medical treatment record from January 2017 noted a report of bilateral hearing loss with an onset noted as slowly over quite a while. Medical treatment records during the appeal period note complaints of and treatment for his bilateral hearing loss disability, to include the use of hearing aids. With regards to whether a causal relationship exists between the Veteran's current bilateral hearing loss disability and his active duty service, a VA examiner provided an audiological examination in October 2017. The examiner determined that the Veteran's hearing loss was less likely than not caused by or a result of an event in military service. He explained, "A separation hearing test dated September 6, 1966 shows hearing within normal limits for both ears. There was no documented hearing loss during the Veteran's active duty service. The Veteran was exposed to hazardous noise post military to include truck engine noise and factory (machine shop) noise." During a December 2020 private audiological examination, the examiner wrote that the Veteran served as a non-morse intercept operator while in service. As such, he was exposed to radio transmissions while under earphones. His last year, he was responsible for ground handling of all flights and thus he was exposed to acoustic trauma from various aircraft without the benefit of hearing protection while in an office located on the flight line. He recalled that several large cargo aircraft were very loud and that his hearing seemed to be diminished after these exposures. The Veteran reported, "I would have to have the TV louder, my wife has to talk louder, and the radio in the car. Sometimes the grandkids would talk and I wouldn't hear them." The examiner determined that the Veteran had a diagnosis of hearing loss according to VA criteria that was at least as likely as not related to, caused by or a result of acoustic trauma while in the military. She provided, "The Veteran described his exposure to acoustic trauma from various aircraft all without the benefit of hearing protection." The Board finds the opinions of the October 2017 VA examiner and the December 2020 private examiner to be probative, as they both provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the competent, credible, probative evidence both for and against the claim are in equipoise. Therefore, the Board resolves doubt in the Veteran's favor and finds that service connection for the Veteran's current bilateral hearing loss disability is warranted. 3. Entitlement to service connection for tinnitus The Veteran also seeks entitlement to service connection for tinnitus. Following a review of the Veteran's medical records, the Board concludes that the Veteran has tinnitus which was caused by his bilateral hearing loss disability. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. In his October 2020 hearing, the Veteran reported that he first started noticing the lingering sound in his ears like ringing or humming while in service. It became progressively worse over time. He also testified that his tinnitus started while in service and has continued consistently from that time to the present. Therefore, the Board finds that the Veteran has satisfied the first prong of secondary service connection, the existence of a current disability. Regarding the second element, the Veteran is currently service-connected for a bilateral hearing loss disability, as discussed above. Accordingly, the Board finds that the Veteran has satisfied the second element, evidence of a service-connected disability. Finally, with respect to the third requirement, a causal relationship between the service-connected disability and the current disability, the Board finds that the opinion of the December 2020 private examiner is probative as to the question of nexus. The Veteran had a VA examination in October 2017 in which the Veteran reported recurrent tinnitus. He reported onset in 1997. He described the tinnitus as high in pitch, intermittent, and bilateral. The VA examiner determined that, "It was less likely than not caused by or a result of military noise exposure. He reported onset as 1997. The Veteran left active duty service in 1966. The Veteran was exposed to hazardous noise post military to include truck engine noise and factory (machine shop) noise." In a private audiological examination in December 2020, the Veteran reported intermittent bilateral tinnitus that is mildly disruptive to his daily life. The Veteran noted, "When I wear the hearing aids it doesn't seem to bother me. It doesn't wake me up." He could not recall the exact onset of his tinnitus but noted that it began while in the service in 1966. The examiner determined that, "His tinnitus is at least as likely as not a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss." The Board finds the opinions of the October 2017 VA examiner and the December 2020 private examiner to be probative, as they both provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). On review, the record contains both positive and negative evidence regarding nexus. That is, the VA provided a negative direct service connection opinion in October 2017 and a private examiner provided a positive secondary service connection opinion in December 2020. However, as the December 2020 opinion is the only opinion providing a nexus based on the theory of secondary service connection, the Board finds that the only probative evidence as to whether the Veteran's tinnitus was caused by his service-connected bilateral hearing loss is positive. (Continued on the next page) Therefore, the Board resolves doubt in the Veteran's favor and finds that service connection for the Veteran's tinnitus is warranted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.