Citation Nr: 18160478
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-07 477
DATE:	December 28, 2018
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is granted.
Service connection for enlarged prostate is denied.
REMANDED
Service connection for squamous cell suparglottic larynx carcinoma, metastatic to neck status-post radiation and chemotherapy (claimed as throat cancer) associated with herbicide exposure is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss is due to in-service noise exposure. 
2. Resolving all doubt in the Veteran’s favor, his tinnitus had its onset in service or, alternatively, within one year of service and a continuity of symptomatology has continued since service.  
3.  The preponderance of the evidence is against finding that the Veteran’s enlarged prostate began during active service, or is otherwise related to an in-service injury, event, or disease.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.  
2. The criteria for service connection for tinnitus have been met.  38 U.S.C.             §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
3. The criteria for service connection for enlarged prostate have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1973 to June 1977. 
This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for hearing loss, tinnitus, enlarged prostate, and squamous cell supraglottic larynx carcinoma, metastatic to neck status-post radiation and chemotherapy.
In October 2014, the Veteran testified before a Decision Review Officer (DRO).  A transcript is of record.
Service Connection
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 service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  “To establish a right to compensation for a present disability, 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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may also be warranted on a presumptive basis for certain chronic diseases, such as sensorineural hearing loss and tinnitus, if the disease manifests to a compensable degree within one year of separation from 90 days of active service.  See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. 
Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.
Nevertheless, even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999).
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).
Hearing loss
The Veteran contends entitlement to service connection for hearing loss. The Veteran contends that his hearing loss is a result of in-service noise exposure.  
The Veteran underwent a VA examination in February 2014.  The February 2014 examination indicates current bilateral sensorineural hearing loss of such severity that it is considered a disability for VA purposes.  38 C.F.R. § 3.385.   Therefore, the question for the Board is whether the Veteran’s current disability began during service or is at least as likely as not related to an in-service injury, event, or disease.
For the reasons discussed below, the Board concludes that, while the Veteran has a diagnosis of bilateral hearing loss, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The Veteran’s January 1973 enlistment report of medical examination notes normal “ear-general” and his January 1973 report of medical history similarly notes “no” to hearing loss, wearing hearing aids, and ear, nose, or throat trouble.  The Veteran’s January 1973 entrance examination shows his pure tone thresholds, in decibels, were as follows:
	HERTZ
	500	1000	2000	3000	4000
RIGHT	5	5	0	15	25
LEFT	5	10	5	5	15

The Veteran’s service treatment records contain June 1973 audiometric data that shows his pure tone thresholds, in decibels, were as follows:
	HERTZ
	500	1000	2000	3000	4000
RIGHT	15	15	10	30	35
LEFT	15	15	5	10	20

The Veteran’s service treatment records also contain May 1974 audiometric date that shows his pure tone thresholds, in decibels, were as follows: 
	HERTZ
	500	1000	2000	3000	4000
RIGHT	15	15	10	30	35
LEFT	15	15	5	10	20

The Veteran’s service treatment records also contain May 1975 audiometric data that notes “no” for significant threshold shift and shows his pure tone thresholds, in decibels, were as follows: 
	HERTZ
	500	1000	2000	3000	4000
RIGHT	10	10	0	15	25
LEFT	10	5	0	0	20

The Veteran’s service treatment records also contain July 1976 audiometric data that notes “no” for significant threshold shift and shows his pure tone thresholds, in decibels, were as follows:
	HERTZ
	500	1000	2000	3000	4000
RIGHT	5	5	0	20	25
LEFT	15	5	5	5	25

The Veteran’s October 1976 separation report of medical examination notes normal “ear-general” and his October 1976 report of medical history similarly notes “no” to hearing loss, wearing hearing aids, and ear, nose, or throat trouble.  The Veteran’s October 1976 separation examination shows his pure tone thresholds, in decibels, were as follows:
	HERTZ
	500	1000	2000	3000	4000
RIGHT	5	5	0	20	25
LEFT	5	0	0	0	20

While there are no in-service complaints of hearing loss, the Board notes that the Veteran’s military occupational specialty (MOS) was weapons mechanic and he has asserted his hearing loss resulted from exposure to aircraft noise, including F-15s that the Veteran described as a high-pitched howl.  The Veteran also reported exposure to noise from power units and light generators.  See July 2014 Notice of Disagreement.  Based on the Veteran’s MOS and statements about noise exposure, the Board finds his asserted in-service noise exposure is consistent with the place, type, and circumstances of his service.  See 38 U.S.C. § 1154(a).  Therefore, the Veteran’s claim turns on whether there is a causal nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. 
Post-service treatment records do contain complaints of hearing loss.  An August 2003 treatment record notes that the Veteran has been noticing right ear hearing loss for “quite some time.”  The Veteran also reported post-service noise exposure with reported ear protection.  The August 2003 treatment record further notes that the Veteran has right ear hearing loss at 2000 and 4000 Hz at 40 decibels and left ear hearing loss at 4000 Hz at 40 decibels.  A January 2010 treatment record notes bilateral hearing intact to conversational voice.  Similarly, a March 2011 treatment record notes bilateral hearing intact to conversational voice and a March 2013 treatment record notes a normal hearing threshold.  A July 2013 treatment record indicates that the Veteran reported a decrease in hearing acuity for many years, especially in the right ear, but experienced greater decline two months into treatment for throat cancer, which is noted as beginning in March 2013.  In the July 2013 treatment record, the Veteran reported he cannot hear crickets or alarm clocks if laying on his left ear.  A July 2013 treatment record notes bilateral normal hearing from 250 through 1000 Hz with a moderate to profound loss from 1500 to 8000 Hz. 
The Veteran underwent a VA examination in February 2014.  The February 2014 VA examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease.  The examiner noted that the Veteran did not have a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency    between 500 and 6000 Hz for the either during service.  The February 2014 examiner noted that the Veteran’s hearing was normal at enlistment in January 1973 and at separation in October 1976.  The February 2014 examiner further noted that a threshold shift must change more than 10 decibels in order to be considered a significant change and the Veteran’s hearing did not decrease more than 10 decibels from his entrance to his exit physical.  For these reasons, the examiner found it less likely than not that the Veteran’s bilateral hearing loss had its onset it service.  The Board notes the STRs do show a positive threshold shift of 10 decibels between the entrance examination and the June 1973 and May 1974 examinations; however, this threshold shift was not permanent.  As noted by the February 2014 VA examiner, a comparison between the Veteran’s entrance and separation examinations show no such threshold shift.  Thus, any such shift noted prior to the October 1976 separation examination was not permanent.  The Board finds the examiner’s opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).   
The Board is cognizant of the Veteran’s belief that his hearing loss is related to in-service noise exposure.  While the Veteran is considered competent to report on symptoms observable by a lay person, such as hearing loss, the Board notes he is not competent to provide a medical opinion as to the origins of his present bilateral hearing loss because such an opinion requires medical expertise that he has not been shown to possess.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  As such, the Board places little probative weight on the Veteran’s statements.  Id., see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Even if his assertions were competent, they would be outweighed by the more probative, and unfavorable, nexus opinion provided by the VA examiner who is a licensed audiologist and has the clinical expertise and training to render medical opinions on the etiology of audiological conditions.  The examiner clearly indicated that the hearing loss did not have onset in service and is not related to noise exposure.
Finally, the Board notes that sensorineural hearing loss is considered a chronic disease under § 3.309(a).  Fountain v. McDonald, 27 Vet. App. 258, 264 (2015).  The evidence does not show that hearing loss manifested during active service or within a year of discharge from service; thus, service connection is not warranted on a presumptive basis.  The evidence also does not show, nor has the Veteran alleged, that the disease was noted during service or that there was a continuity of symptomology in symptoms after discharge from service.  Thus, the continuity of symptomology framework does not establish a nexus between the current disability and active military service.  See 38 C.F.R. § 3.303 (b).
In sum, the evidence shows the Veteran has bilateral sensorineural hearing loss and that he experienced military noise exposure; however, the evidence weighs against finding a nexus between the current disability and active military service.  The evidence also does not support that service connection may be warranted on a presumptive basis.  Thus, the Board reiterates that the preponderance of the evidence weighs against finding that the Veteran’s in-service noise exposure is related to his current bilateral hearing loss.  Accordingly, service connection for bilateral hearing loss is not warranted.
Tinnitus
The Veteran seeks entitlement to service connection for tinnitus.  A February 2014 VA examination indicates a current diagnosis of tinnitus.  As noted above, in-service noise exposure has been conceded.  During the February 2014 VA examination, the Veteran reported that tinnitus had its onset during service and has been recurrent since that time.  The Veteran is competent to report the onset and continuity of his tinnitus symptoms, as tinnitus is a disease that is capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Although the Veteran’s report that his tinnitus began in service is equivocal, the Board resolves doubt in his favor.  Accordingly, service connection for tinnitus is warranted.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303 (b), (d). 
Enlarged prostate 
The Veteran seeks entitlement to service connection for enlarged prostate. The Veteran has a current diagnosis of enlarged prostate.  See, e.g., February 2017 VA treatment records. 
The Veteran has not asserted how he believes his current prostate disability relates to his active service.  His STRs do not show any complaints, treatment, or diagnoses related to a prostate problem.  Both his January 1973 enlistment and October 1978 separation examinations report a normal clinical evaluation of the genitourinary system, the endocrine system, and the anus and rectum.  
A June 2013 VA treatment record notes the prostate was within normal limits.  A May 2017 VA treatment record notes benign prostatic hyperplasia (BPH) with a history of elevated prostate specific antigen (PSA).  There is otherwise no other competent etiological evidence of record.
The Veteran’s disability is not an enumerated condition under 38 C.F.R. 3.309(e).  Further, the Veteran has not asserted, and the evidence does not otherwise suggest, that there may be a direct nexus between alleged herbicide exposure and his current disability.  Therefore, VA has no duty to assist the Veteran in substantiating this claim by providing a medical examination or opinion because there is no indication of a nexus to active service.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
To the extent that the Veteran himself attributes a prostate condition to service, the medical evidence does not support a finding that warrants service connection for an enlarged prostate.  Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of a prostate condition falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 
Accordingly, the preponderance of the evidence is against the claim for service connection for a prostate condition.  The benefit of the doubt rule does not apply, and the Veteran’s claim for service connection for a prostate condition is denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 54-56.
REASONS FOR REMAND
Squamous cell suparglottic larynx carcinoma, metastatic to neck status-post radiation and chemotherapy (claimed as throat cancer) associated with herbicide exposure is remanded.
The Veteran relates his current diagnosis of squamous cell supraglottic larynx carcinoma to herbicide exposure during his service in Thailand or, alternatively, to time in Saigon, Vietnam.  The Veteran’s squamous cell supraglottic larynx carcinoma is a disease recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure.  However, the Veteran’s exposure to herbicide agents, to include Agent Orange, has not yet been verified.  
The Veteran testified that he was stationed at the Korat Royal Thai Air Base and the Ubon Airfield in Thailand during the Vietnam War era, each for a period of six months.  He testified that he worked on fighter aircrafts, to include F-105 Thunder Chiefs and F-4D Phantoms, on the flight-lines.  He also reported that he passed through the perimeter of the base when he lived off-base during his service in Korat, Thailand.  See July 2014 Notice of Disagreement.  Information in the Veteran’s service personnel records reflect he was a mechanic; his DD 214 shows a military occupational specialty (MOS) of weapons mechanic.
Herbicide exposure may be conceded on a direct basis for a veteran who served in the Air Force in Thailand during the Vietnam Era at specific Royal Thai Air Force Bases (RTAFB), if he or she served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The Veteran did not serve in any of these capacities.
Nevertheless, the AOJ did not attempt to verify the Veteran’s alleged herbicide exposure.  Therefore, the AOJ should contact the Veteran for any additional information needed about his claimed exposure to herbicides while he was stationed at the airbase in Thailand to formulate a request for corroboration.  Thereafter, an attempt should be made to verify his claimed herbicide exposure during service in Thailand with the JSRRC or a formal finding that evidence of exposure to herbicide agents does not exist. 
As noted above, the Veteran also reported travel to Saigon, Vietnam in May 1974.  The Veteran asserts he was on a flight from Bangkok, Thailand back to Ubon Airfield when the flight was rerouted through Saigon.  The Veteran asserts that he was in transit with those indicated in transportation authorization 725, which is of record.  The AOJ should undertake any needed development to attempt to verify any in-country Vietnam service, to include exposure to herbicide agents.
The matters are REMANDED for the following action:
(Continued on the next page)
 
Take appropriate steps to verify the Veteran’s asserted in-service exposure to herbicide agents as discussed above (i.e., at the RTAB in Korat, Thailand or Ubon, Thailand and during an in-country Vietnam flight in May1974).  If more details are needed, contact the Veteran to request the information.  If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure.
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Aoughsten, Associate Counsel 


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