Citation Nr: 21042347 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 20-03 335 DATE: July 12, 2021 ORDER The claim of service connection for chronic obstructive pulmonary disease (COPD) is dismissed. The claim of service connection for a bilateral knee disability is dismissed. Service connection for tinnitus is granted. Service connection for prostate cancer, status post radical prostatectomy, is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. During the May 2021 Board hearing, the Veteran, through his attorney, requested to withdraw from appellate status the claims of entitlement to service connection for COPD and a bilateral knee disability. 2. With all reasonable doubt resolved in the Veteran's favor, his tinnitus cannot be satisfactorily disassociated from his in-service noise exposure. 3. With all reasonable doubt resolved in the Veteran's favor, his prostate cancer cannot be satisfactorily disassociated from in-service asbestos and radiation exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran as to the issues of entitlement to service connection for COPD and a bilateral knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for prostate cancer, status post radical prostatectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1957 to April 1960. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a March 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for hearing loss, tinnitus, prostate cancer, COPD, and bilateral knee disability. The Veteran's Notice of Disagreement (NOD) was received in May 2016. The Statement of the Case was issued in December 2019, and the Veteran's VA Form 9, substantive appeal to the Board was received in January 2020. In May 2021, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) at a Board hearing. The transcript is of record. Of note, the Veteran seeks service connection for prostate cancer. Following a review of the record, the Veteran's claim is recharacterized to prostate cancer, status post radical prostatectomy, to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Withdrawn claims 1. Entitlement to service connection for COPD. 2. Entitlement to service connection for a bilateral knee disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the May 2021 Board hearing, the Veteran, through his attorney, requested to withdraw his appeal as to the issues of entitlement to service connection COPD and a bilateral knee disability. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, there remain no allegations of errors of fact or law for appellate consideration with regard to the issues of entitlement to service connection for COPD and bilateral knee disability. As the Board no longer has jurisdiction to review this issue, it is dismissed. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 3. Entitlement to service connection for tinnitus. At the May 2021 Board hearing, the Veteran testified that he served aboard USS Navarro during Operation Hardtack. Operation Hardtack involved nuclear testing and detonation of bombs in the South Pacific. The Veteran testified that he was present during at least 9 detonations, and that one particular explosion blew the bulkhead door through the ship. The Veteran also testified that he began having ringing in his ears while in service following these explosions. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). During the January 2016 VA examination, the Veteran reported that he had tinnitus. Thus, the Veteran has met the current disability requirement. Additionally, the Veteran reported that he was subjected to noise exposure during his active military service when he was present during nuclear bomb testing and explosions. The Veteran's DD214 lists the Veteran's military occupational specialty as seaman and notes service on USS Navarro. The Veteran's file also contains a certificate of completion for Operation Hardtack. The Veteran submitted articles regarding Operation Hardtack, confirming the frequency and the intensity of atomic bomb testing that took place. The Veteran's military service records along with the submitted articles illustrate that the nature of his service is consistent with the contentions regarding noise exposure he experienced in service. His statements have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Although the Veteran's MOS is not typically associated with a high probably of noise exposure, in this case, there is record of the Veteran in participating in nuclear testing and explosions, as confirmed by his service on USS Navarro and his certificate of completion for Operation Hardtack. Therefore, the Veteran has met the in-service injury or event requirement. Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure. During the January 2016 VA examination, the Veteran indicated that he felt like he has always had tinnitus and cannot recall when it started. The January 2016 VA examiner concluded that the Veteran's tinnitus is less likely than not related to service in part because there was no recall from the Veteran as to the onset. However, during the May 2021 Board hearing, the Veteran clearly testified that tinnitus had its onset in service following atomic testing and explosions. With all reasonable doubt resolved in the Veteran's favor, his May 2021 Board testimony is afforded greater probative value. In other words, it is reasonable to assume that if the Veteran felt like tinnitus has always been there, and he was discharged approximately 60 years ago, then tinnitus as likely as not had its onset in service and has persisted for many decades. As the VA examiner based the negative nexus opinion on the premise that the Veteran's entrance and separation whisper tests were normal and, on the Veteran, not clearly remembering the onset of tinnitus to be during service, the opinion is not afforded probative value. The VA examiner did not take into consideration the Veteran's statements that tinnitus began in service. As noted above, tinnitus is an observable symptom capable of lay observation. The Veteran testified that he started noticing ringing in his ears after witnessing explosions in service. "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). As noted above, the Board has found the Veteran's statements in this regard to be credible. Consequently, this lay evidence of a nexus between the Veteran's current tinnitus and his military service based on in-service onset, and continuous symptoms ever since, is entitled to substantial probative weight. The evidence before the Board thus consists of an inadequate negative medical nexus opinion and competent, credible lay evidence of current tinnitus that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's tinnitus is related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). 4. Entitlement to service connection for prostate cancer, status post radical prostatectomy. The Veteran contends that his prostate cancer is related to in-service asbestos exposure. In the alternative, he contends that his prostate cancer is related to in-service radiation exposure. During the May 2021 Board hearing, the Veteran testified that he served aboard USS Navarro, which was confirmed to have asbestos on it. The Veteran's STRs are silent for complaints of, or treatments for, asbestos or prostate cancer. As previously noted, the Veteran's military personnel records confirm service on USS Navarro and MOS of seaman. A March 1999 private operative report confirms the diagnosis of prostate cancer, indicating that the Veteran underwent a left nerve-sparing radical prostatectomy. In a May 2016 statement, the Veteran explained that the Veteran was aboard the USS Navarro in 1958 when it was begin used as a decontamination station for radiation as a result of numerous atomic explosions, 9 of which occurred while he was stationed aboard. In November 2020, the Veteran submitted a private medical report from Dr. C.K. Dr. C.K. is identified as the professor of radiation oncology at UCLA. His curriculum vitae indicates that he is board-certified in Radiation Oncology with an unrestricted license to practice medicine in the state of California. His curriculum vitae also details an extensive carrier in research, teaching, and practicing in the field of oncology. Dr. C.K. indicates that they reviewed the Veteran's entire claims file, including his STRs, his military personnel records, post-discharge records, and his communications with the VA. Dr. C.K. confirmed the Veteran's MOS to be seaman aboard USS Navarro, noting that the ship was documented to have asbestos material in ubiquitous use throughout. Dr. C.K. noted that the Veteran's MOS of seaman is on the VA's list as having acknowledged asbestos exposure. The Veteran's duties were listed as ship maintenance, equipment maintenance, repair, storage for underway operations, lookout and helmsmen duties, serving as a member of damage control, emergency and security alert teams. It was noted that the Veteran was diagnosed with prostate cancer in January 1999 and underwent a successful radical prostatectomy in March 1999. Dr. C.K. indicates that the Veteran suffers from residuals of his prostatectomy, including erectile dysfunction and urinary incontinence. The report goes on to state that asbestos is a confirmed human carcinogen, with consensus that there are no safe levels of exposure and that its carcinogenicity does not diminish after exposure stops as it remains permanently embedded in target tissues. Dr. C.K. indicates that latency of asbestos-related cancers is notoriously long, in the 40 plus years range, consistent with the Veteran's case, which is 38 years. Dr. C.K. noted multiple studies consistently showing increased prostate cancer among those exposed to asbestos, with two 2019 studies showing a significantly higher risk. Dr. C.K. then indicated that the Veteran did not have personal risk factors for prostate cancer, noting no family history, the Veteran not being African American, and being 8 years younger than the average age at diagnosis, consistent with previous exposure to carcinogen. Dr. C.K. also indicated that the Veteran's obesity and smoking are not risk factors associated with prostate cancer and that the Veteran was not exposed to any other known carcinogens following service. Dr. C.K. concluded that based on the review of the scientific and medical literature, it is at least as likely as not that the Veteran's prostate cancer was caused by asbestos exposure during military service. The report goes on to detail Dr. C.K.'s conclusion in greater detail, providing further summaries for the studies and the medical literature that was cited in support. Furthermore, the Veteran's participation in Operation Hardtack has been corroborated, and March 2021 correspondence from the Defense Threat Reduction Agency indicates that the Veteran was previously confirmed by the Nuclear Test Personnel Review Program as a participant in U.S. nuclear testing conducted between 1945 and 1992. At the Veteran's May 2021 Board hearing, he testified that he was involved with the testing of eight atomic bombs and one hydrogen "H" bomb during service. The Veteran further testified that he was only a quarter of a mile away from the detonations. In addition, the Veteran testified that during the exposures, "...the Geiger counters were going crazy, and after one fall out, we had to rush everybody in there, wash them down and decontaminate." The Veteran also recalled that when the hydrogen bomb exploded, "...it blew the door off of the engine room of the ship." The Veteran also noted that every explosion began with a large flash, "...so great that we were told if we looked at it that it would blind us." This was followed by a shock wave "...feeling like someone was trying to push a large object through your ears." Although VA's December 2019 advisory opinion regarding in-service radiation exposure concluded that the Veteran's prostate cancer was not related to radiation exposure based on the dose estimates for the Veteran, that opinion does not take into account the Veteran's credible testimony regarding his experiences during service with regard to the immediate effects of exposure to nuclear testing. Although the Veteran is not competent to provide an opinion linking his radiation exposure to his prostate cancer, the Veteran is certainly competent to report his observable symptoms, which in this case do not appear consistent with the dose estimate calculated by VA. Thus, given the Veteran's competent observable symptoms of the immediate effects of his in-service radiation exposure, coupled with the medical opinion by Dr. C.K. regarding the effects of the Veteran's in-service asbestos exposure, the totality of the competent and probative evidence of record is at least in equipoise as to whether the Veteran's prostate cancer, status post radical prostatectomy is related to his in-service exposures. As such, the Veteran's prostate cancer, status post radical prostatectomy cannot be satisfactorily disassociated from his service. The Veteran's private treatment records confirm the 1999 diagnosis of prostate cancer and subsequent surgery. The Veteran testified that he served aboard USS Navarro, which is confirmed to have asbestos on it. His MOS is listed as seaman and his military personnel records confirm service on USS Navarro. The June 2020 private report cites the Veteran's duties as ship equipment maintenance, repair, and storage for underway operations. Accordingly, the Veteran's statements are found to be competent, credible, and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, the Veteran's statements, combined with the evidence in his service personnel records and the June 2020 private report provide probative evidence in support of his claim of asbestos exposure in service. In addition, as noted above, exposure to in-service radiation is also shown, and the Veteran has provided competent and credible evidence as to the immediate observable effects from that exposure. The remaining question is whether there is a link between the Veteran's prostate cancer and his in-service exposures. In this regard, the June 2020 private medical opinion from Dr. C.K. indicates that it is at least as likely as not that the Veteran's prostate cancer is related to his in-service asbestos exposure. Dr. C.K. supported this conclusion with numerous medical articles and studies. These studies supported the conclusion that asbestos exposure increases the risk of prostate cancer, that the Veteran was diagnosed earlier than the average, corroborating earlier carcinogen exposure, and that the timeline of 38 years between exposure and diagnosis is consistent with the latency of asbestos-related cancers. Dr. C.K. also noted that the Veteran did not have any other prostate cancer risk factors. The January 2020 private medical opinion is corroborated by the record and the appropriate medical literature cited. Moreover, full rationale is provided for all conclusions reached. Thus, the January 2020 private medical opinion is afforded probative value in this case. In addition, the Veteran's competent and credible testimony regarding the harsh immediate effects from his corroborated in-service radiation exposure raises doubt as to the dose estimates relied upon by VA. In summary, the evidence is at least in relative equipoise as to whether the Veteran's prostate cancer, status post radical prostatectomy is related to in-service asbestos and/or radiation exposure. Resolving all reasonable doubt in the Veteran's favor, his prostate cancer, status post radical prostatectomy cannot be satisfactorily disassociated from service. As such, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that he has bilateral hearing loss as a result of the above-described in-service noise exposure. He also asserts that the VA examination provided in this matter is inadequate because the VA examiner did not take into consideration the Veteran's testimony that tinnitus had its onset in service, that he was exposed to loud explosions during service, and that in-service he was diagnosed with otitis media which is related to hearing loss. As noted above, the Veteran underwent a VA audiometric examination in January 2016. He was diagnosed with bilateral sensorineural hearing loss. The VA examiner concluded that the Veteran's bilateral hearing loss was not due to military noise exposure because the Veteran's whisper tests at entrance and discharge did not show a significant threshold shift, because the Veteran's MOS was low probability of noise exposure, and because of the history of post-service occupational noise exposure. However, the VA examiner did not take into consideration the Veteran's competent statements regarding tinnitus onset, in-service diagnosis of otitis media, and in-service exposure to atomic testing and explosions. Moreover, the VA examiner did not determine when the Veteran's bilateral hearing loss had its onset. When medical evidence is inadequate, the VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992). In this case, an addendum medical opinion is necessary to address the Veteran's lay testimony as well as in-service treatment of otitis media. Finally, given that the Veteran's tinnitus is service-connected pursuant to this decision, an additional medical opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion on the nature and etiology of the Veteran's bilateral hearing loss. A copy of the Veteran's file, including a copy of this remand must be made available to the examiner for review, and the opinion should reflect that the claims file was reviewed in conjunction with providing the addendum opinion. The VA examiner is requested to opine as to the following: (a.) Whether it is at least as likely as not that the Veteran's hearing loss had its clinical onset during active service or is otherwise causally relate to service, to include whether it is related to the service-connected tinnitus and/or claimed noise exposure and/or multiple in-service diagnosis and treatments for otitis media. (b.) In providing this opinion, the examiner must comment on the Veteran's reports of in-service tinnitus. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be made specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. (c.) In providing this opinion, the examiner must comment on the Veteran's reports of in-service noise exposure. Particularly, his testimony that he participated in Operation Hardtack (as confirmed by his file) and witnessed multiple atomic and H-bomb explosions, suffered a ruptured ear drum as a result, and was not provided with ear protection during the detonations. (d.) In providing this opinion, the examiner must comment on the multiple documented in-service diagnosis and treatments for otitis media, and whether it at least as likely as not caused current bilateral hearing loss. The absence of evidence of treatment for a hearing loss disability in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.