Citation Nr: 21048767 Decision Date: 08/10/21 Archive Date: 08/10/21 DOCKET NO. 12-30 563 DATE: August 10, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. Service connection for bladder cancer is granted. Service connection for rheumatoid arthritis as secondary to service-connected bladder cancer is granted. FINDINGS OF FACT 1. The Veteran died in March 2017 and the Veteran's surviving spouse has been recognized as a valid substitute. 2. The Veteran's current bilateral hearing loss for VA purposes was etiologically related to his in-service noise exposure. 3. The Veteran's current tinnitus was proximately due to his service-connected bilateral hearing loss. 4. The Veteran had in-country service in Vietnam and is presumed to have been exposed to herbicide agents, such as Agent Orange (AO). 5. The Veteran was diagnosed with bladder cancer in 2011 and again in 2015. 6. The Veteran's rheumatoid arthritis was proximately due to his service-connected bladder cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to service connection for rheumatoid arthritis as secondary to bladder cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for entitlement to service connection for urinary tract/bladder cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2)(J) (Supp. 2021); 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 and September 2013 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in March 2017. The appellant is the Veteran's surviving spouse. She requested to be a substitute claimant for the Veteran's claims that were pending at the time of his death. In December 2018, the appellant was granted substitution for the Veteran's pending claims of entitlement to service connection for bilateral hearing loss, tinnitus, urinary tract/bladder cancer, and rheumatoid arthritis. 38 U.S.C. § 5121A. The appellant had requested a Board hearing, which was originally scheduled for March 2020. That hearing was cancelled due to the COVID pandemic and the appellant had expressed interest in rescheduling the hearing. See VA 27-0820 Report of General Information received 3/22/2021. Since the Board's decision herein is a full grant of the benefits sought on appeal, the Board finds the appellant is not prejudiced by adjudication of the appeal absent a hearing. Service Connection 1. Service connection for bilateral hearing loss is granted. 2. Service connection for tinnitus is granted. The Veteran contended that his hearing loss and tinnitus was caused by his active duty noise exposure to include his work at an ammunition dump. See VA examination received 7/08/2010 at page 1. In the October 2012 Statement of the Case (SOC), the AOJ stated that the Veteran's military occupational specialty (MOS) was an occupation that involved exposure to hazardous noise levels. See SOC received 10/12/2012 at page 27. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran was provided a VA examination in July 2010. At the examination, the Veteran reported that he had difficulty hearing shrill sounds for many years and that he noticed constant buzzing and humming bilaterally in his ears. See VA Examination received 7/08/2010 at page 1. He reported military noise exposure during his service in Vietnam, which consisted of gun fire, vehicle traffic, aircraft noise, and noise from his work at the ammunition dump. Id. Post-service the Veteran worked in construction and ran heavy equipment; he also occasionally used a saw for his recreational carpentry work. Id. at 3. The Veteran was diagnosed with bilateral sensorial hearing loss and tinnitus. Id. at page 3. The July 2010 VA examiner opined that the Veteran's hearing loss was less likely than not related to service since his hearing at separation was normal. The July 2010 VA examiner attributed his current hearing loss with his post-service civilian occupational and recreational noise exposure. In December 2010, the Veteran submitted a statement wherein he detailed hitting a mortar while driving a D8 dozer that destroyed the dozer and left him unable to hear for two to three days. See Statement in Support of Claim received 1/3/2011 at page 1. The Board finds the lay statements provided by the Veteran to be credible, since they have been internally consistent. The Board also finds the Veteran's assertions of hearing loss and tinnitus competent. Therefore, the Board finds that service connection for hearing loss and tinnitus is warranted. Although, the Board finds the VA examiner's statement consistent with the enlistment and separation examinations, the Board finds that when compared to the pre-induction audiological examination the tests are questionable. See STR-Medical received 8/21/2009 at pages 12, 16 and 49. Specifically, when the Veteran's pre-induction examination, induction examination, and separation audiological examinations are compared it would seem that the Veteran had hearing loss between the three years from his pre-induction and induction examinations but improved hearing from induction to separation. Given that the Board finds exposure to hazardous noise related to the Veteran's MOS, the audiometric examinations on file are questionable. Accordingly, the Board would resolve the any doubt in favor of the Veteran, and therefore grant service connection for bilateral sensorineural hearing loss, a chronic disease. 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). Relatedly, since the July 2010 VA examiner opined that the Veteran's tinnitus was secondary to his hearing loss, the Board finds that service connection for tinnitus is also warranted per 38 C.F.R. § 3.310(a). 3. Service connection for bladder cancer is granted. The Veteran claimed that his urinary tract/bladder cancer was the result of exposure to herbicide agents to include Agent Orange (AO) during his active duty service in Vietnam. See Form 9 received 10/17/2014. The Veteran had in-country service in Vietnam from October 1968 to October 1969 where he served as an Ammunitions Renovation Specialist. See Certificate of Release or Discharge from Active Duty (DD-214) received 2/04/1970; see also STR-Medical received 8/21/2009 at page 5. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide agent exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In the September 2013 rating decision on appeal, the Veteran was denied service connection for urinary tract/bladder cancer because at that time the condition was not one for which VA a presumes is related to service. See Rating Decision-Narrative received 9/24/2013 at page 2. On January 1, 2021, however, Congress overrode the Presidential veto of the National Defense Authorization Act for Fiscal Year 2021 and it became law. See Public Law No. 116-283. Section 9109 of that law amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of presumptive conditions for exposure to herbicide agents, to include AO. The Veteran was first diagnosed with bladder cancer in 2011. He received treatment and his last cystoscopy in November 2014 and did not show evidence of the disease. However, in September 2015, the Veteran presented to outpatient oncology with significant weight loss, night sweats, loss of appetite and lymphadenopathy. A biopsy would later confirm a diagnosis of metastatic bladder cancer. See Capri received 6/22/2017 at page 2-3. As the Veteran had a current diagnosis of bladder cancer and was exposed to AO in Vietnam, service connection shall be presumed in the absence of intercurrent causes. The medical record does not suggest an intercurrent cause. Service connection is presumptively granted for urinary tract/bladder cancer. 4. Service connection for rheumatoid arthritis as secondary to service-connected bladder cancer is granted. The Veteran claimed entitlement to service connection for rheumatoid arthritis secondary to his now service-connected bladder cancer. Specifically, the Veteran stated that medication used to treat his bladder cancer caused his rheumatoid arthritis. See VA 21-4138 Statement in Support of Claim received 2/25/2013. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 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 establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Unfortunately, the Veteran was not provided a VA examination during his lifetime. However, a review of his medical records show that his VA treatment providers connected his rheumatoid arthritis to his bladder cancer treatment saying, "he began having systemic rheumatologic symptoms thought to be secondary to BCG treatments per Rheumatology (Dec 2012)." See Capri received 6/22/2017 at page 2. The Board finds this statement sufficient when giving the Veteran the benefit of the doubt to establish secondary service connection. 38 C.F.R. § 3.310(a). Accordingly, service connection for rheumatoid arthritis secondary to bladder cancer is granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.