Citation Nr: 21039578 Decision Date: 06/30/21 Archive Date: 06/30/21 DOCKET NO. 17-64 211 DATE: June 30, 2021 ORDER Service connection for AL amyloidosis is granted. Service connection for bilateral hearing loss is denied. Service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran was exposed to herbicide agents while serving at Ft. Gordon during active duty for training (ACDUTRA) with the Army Reserves. 2. The evidence is at least in equipoise that the Veteran's AL amyloidosis was caused by his exposure to herbicide agents during ACDUTRA. 3. There is no evidence of record that the Veteran had current bilateral hearing loss as defined by VA regulations. 4. The Veteran died in October 2016; the certificate of death reflects that the immediate cause of death was congestive heart failure due to amyloidosis. CONCLUSIONS OF LAW 1. The criteria for service connection for AL amyloidosis are met. 38 U.S.C. §§ 101(24), 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 101(24), 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on ACDUTRA with the Army Reserves, from March 20, 1967 to July 19, 1967. The Veteran died in October 2016 and the appellant is the Veteran's surviving spouse. These matters are on appeal of an August 2017 rating decision. The Appellant filed a request for substitution in October 2016 within a month of the Veteran's death. There is an indication in the August 2017 rating decision that the decision was made based on the evidence of record at the time of the Veteran's death, which would indicate that substitution had not been granted. However, in the November 2017 statement of the case (SOC), the Agency of Original Jurisdiction (AOJ) stated that they had accepted the appellant's request for substitution. Furthermore, the SOC and September 2018 supplemental SOC also indicate that the AOJ considered evidence of record received after the Veteran's death. Therefore, the record supports that the AOJ at the very least implicitly granted the appellant's request for substitution for the claims for service connection for AL amyloidosis, prostate cancer, and bilateral hearing loss. Thus, the claims of service connection for AL amyloidosis, prostate cancer, and bilateral hearing loss on appeal are properly before the Board with the appellant substituting for the deceased Veteran. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2020). In November 2020, a hearing was held before the undersigned. A transcript of the hearing is of record. SERVICE CONNECTION The appellant and her attorney contend that the Veteran was exposed to herbicide agents during his ACDUTRA at Ft. Gordon in July 1967, and this exposure caused his diagnosed AL amyloidosis. They further contend that the Veteran had bilateral hearing loss related to his service. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military service includes periods of ACDUTRA in which a service member was disabled or died from a disease or injury incurred or aggravated in line of duty and periods of inactive duty for training (INACDUTRA) in which a service member was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(1), (24); 38 C.F.R. § 3.6. For purposes of 38 U.S.C. § 101(24), the term "injury" refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). An external trauma includes "serious adverse effects on body tissue or systems resulting from introduction of a foreign substance." VAOPGCPREC 4-2002. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of pre-existing diseases or injuries which undergo an increase in severity during service, the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, and the presumption of service incurrence for certain diseases associated with exposure to certain herbicide agents are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. A claimant whose claim is based on a period of ACDUTRA or INACDUTRA cannot be entitled to the presumption of service connection for enumerated diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); 38 U.S.C. §§ 101(24)(B), 1112, 1137; 38 C.F.R. §§ 3.6(a), 3.307(a). Hence, the Board will not consider the appellant's claims of entitlement to service connection on a presumptive basis. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct basis, a claimant must show: (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 disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Therefore, the Board will consider whether the appellant's claims can be established on direct bases. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). 1. AL Amyloidosis After reviewing the evidence of record and resolving all reasonable doubt in the appellant's favor, the Board concludes that the Veteran developed AL amyloidosis that was related to an injury incurred during a period of ACDUTRA. 38 U.S.C. §§ 101(24), 1110, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Initially, the Veteran's service treatment records do not show that his AL amyloidosis had its onset during his ACDUTRA, nor does the appellant contend that it did. Rather she asserts that it developed as a result of exposure to herbicide agents while the Veteran served at Ft. Gordon. The Board finds the specific facts in this case are at least in equipoise regarding whether the Veteran was exposed to herbicide agents during his ACDUTRA at Ft. Gordon in July 1967. An undated memo regarding Department of Defense (DOD) Tactical Herbicides Sites, indicates that testing of herbicide agents from July 1967 to October 1967 was conducted at Ft. Gordon, chosen due to its isolation from local human populations. This memo reflects that aerial application of the herbicide agents was made at the Ft. Gordon site. An August 2017 Defense Personnel Records Information Retrieval System (DPRIS) response to VA's inquiry, was unable to document that the Veteran was exposed to herbicide agents during his service at Ft. Gordon from June 1967 to July 1967. However, the appellant testified that the Veteran delivered mail while stationed at Ft. Gordon, and that he covered the entire base in this capacity. Indeed, the Veteran's DD 214 indicates that his military occupational specialty (MOS) was as a communication center specialist. Therefore, the appellant's testimony regarding the nature of the Veteran's duties are consistent with the circumstances of his service. The appellant also submitted an undated article regarding Agent Orange (herbicide agent) mist drift that occurred when initially dropped from aircraft or from vaporization during the heat of the day. It was estimated that drift ranges could be more than six miles. The Board places equal weight of probative value on the DOD memo indicating that the herbicide agent testing was in isolated locations on base and DPRIS's inability to verify the Veteran's exposure to herbicide agents, as well as the appellant's testimony regarding the Veteran traversing all over the Ft. Gordon base delivering mail and the article regarding Agent Orange mist drift. Based on the specific facts of this case, and resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran was exposed to herbicide agents during his ACDUTRA service, and that this exposure qualifies as an injury as it constituted external trauma that resulted in causing serious adverse effects to body systems. See VAOPGCPREC 4-2002. In a February 2018 letter, a private physician, after reviewing the Veteran's medical records, as well as articles regarding herbicide agent exposure, opined that it was at least as likely as not that the Veteran's exposure to herbicide agents caused his AL amyloidosis. In his rationale, he indicated that he reviewed medical literature linking AL amyloidosis to herbicide agent exposure and noted that AL amyloidosis is a rare condition. There is no evidence of record contradicting the physician's opinion and he has provided adequate rationale for his opinion. In conclusion, the Board finds the probative evidence of record to at least be in equipoise as to whether the Veteran's AL amyloidosis is related to an injury (his exposure to herbicide agents) during his period of ACDUTRA in July 1967. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for AL amyloidosis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Bilateral Hearing Loss Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the 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. The Veteran's claim for service connection for bilateral hearing loss was submitted just one month prior to his death. He did not submit any evidence of hearing loss, nor has the appellant subsequently submitted or alleged that there is objective evidence of the Veteran having impaired hearing to the degree necessary to be considered a disability for VA purposes. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that a Veteran currently has the disability for which benefits are being claimed. Here, there is no evidence the Veteran had a hearing loss disability as defined by VA regulations. Therefore, the Board cannot grant the claim under any theory of entitlement. Without evidence of a current hearing loss disability as defined by VA regulations, a preponderance of the evidence is against the appellant's claim. The benefit of the doubt doctrine does not apply, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Service Connection for Cause of Death Service connection for a disability that caused a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be causally related thereto. 38 C.F.R. § 3.312(b). The Veteran's October 2016 death certificate lists the immediate cause of his death as congestive heart failure due to amyloidosis. As service connection has been granted for AL amyloidosis above, service connection for the cause of the Veteran's death is warranted. 38 C.F.R. § 3.312(c)(1). REASONS FOR REMAND The appellant and her attorney contend that the Veteran's prostate cancer is the result of his exposure to herbicide agents during his ACDUTRA service at Ft. Gordon during July 1967. Based on the specific facts in this case, the Board has found that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his ACDUTRA and that this exposure constituted an injury for purposes of 38 U.S.C. § 101(24). While prostate cancer is a presumptive disease for exposure to herbicide agents, as noted above, a claim based on a period of ACDUTRA or INACDUTRA cannot be entitled to service connection presumptions for the listed diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). There is no competent medical evidence etiologically linking the Veteran's prostate cancer to his service or his exposure to herbicide agents during his period of ACDUTRA in 1967. In this respect, the Board has considered the appellant's arguments and her belief that the Veteran's prostate cancer is related to his exposure to herbicide agents during his ACDUTRA. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the matter of the etiology of the Veteran's prostate cancer is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Therefore, the issue must be remanded to obtain a medical opinion regarding the etiology of the Veteran's prostate cancer. The matter is REMANDED for the following action: 1. Contact the appellant and provide her the opportunity to identify or submit any additional evidence pertinent to the claim that is not currently of record. Based on her response, attempt to procure copies of all records identified that are not already of record. 2. After any additional evidence is associated with the claims file, arrange to have an appropriate VA medical professional comprehensively review the electronic claims file. Based on review of the pertinent evidence of record, the clinician should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's prostate cancer was related to his period of ACDUTRA or any incident therein, to include his conceded exposure to herbicide agents in July 1967? A complete rationale for all opinions must be provided that addresses the Veteran's acknowledged exposure to herbicide agents. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.