judge_norm: KELLI A KORDICH

condition: cancer

text:
��Citation Nr: 20029000

Decision Date: 04/24/20	Archive Date: 04/24/20

DOCKET NO. 09-43 084

DATE: April 24, 2020

ORDER

Service connection for chronic myelogenous leukemia (CML), claimed as due to exposure to ionizing radiation, is denied.

Service connection for residuals of a cerebrovascular accident (CVA or stroke), to include as secondary to CML, or to radiation exposure, is denied.

Service connection for loss of sense of smell and loss of sense of taste is denied.

Service connection for right ear hearing loss is granted.

FINDINGS OF FACT

1. CML was not present in service or within one year of service separation, and is not etiologically related to service, including exposure to ionizing radiation.

2. Residuals of a stroke were not present in service or within one year of service separation, and they are not etiologically related to service, including exposure to ionizing radiation, or a service-connected disability.

3.  Loss of sense of smell and loss of sense of taste were not present in service or for years thereafter, and they are not etiologically related to service, including exposure to ionizing radiation, or a service-connected disability.

4. The Veteran's right ear sensorineural hearing loss is related to in-service noise exposure.

CONCLUSIONS OF LAW

1. CML was not incurred or aggravated during active duty, is not proximately due to, the result of, or aggravated by a service-connected disability, and its incurrence or aggravation during active duty may not be presumed. 38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.311, 3.310 (2018).

2. Residuals of a cerebrovascular accident (CVA or stroke), were not incurred or aggravated during active duty, are not proximately due to, the result of, or aggravated by a service-connected disability, and their incurrence or aggravation during active duty may not be presumed. 38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.311, 3.310 (2018).

3.  Loss of sense of smell and loss of sense of taste were not incurred or aggravated during active duty, are not proximately due to, the result of, or aggravated by a service-connected disability, and their incurrence or aggravation during active duty may not be presumed. 38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.311, 3.310 (2018).

4. Right ear sensorineural hearing loss was incurred in active military service. 38 U.S.C. �� 1110, 1131, 5107 (2012); 38 C.F.R. � 3.303, 3.307, 3.309, 3.385 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active Navy service from October 1969 to October 1976, including service in Guam, and had periods of verified and unverified reserve duty thereafter, including a period of verified Active Duty for Training (ACDUTRA) from June 18, 1981 to July 1, 1981. The Veteran died in 2012. The appellant is the surviving spouse of the Veteran and has been substituted for the Veteran in this appeal, which was certified to the Board for appellate review prior to the Veteran s death.

The Veteran and the appellant testified before the RO at a personal hearing conducted in May2011. A transcript of the hearing is of record.

In July 2017, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.

The Board notes that in a February 2020 rating decision, the RO granted service connection for tinnitus.  This was a full grant of the benefit sought with regard to that issue.  Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997).

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 military service. 38 U.S.C. �� 1110; 38 C.F.R. � 3.303 (a).

Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. � 3.303.

Under 38 C.F.R. � 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a disorder was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. � 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. � 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C. � 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a layperson is competent to identify the medical disorder, (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 at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection may 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).

Active service includes (1) active duty, (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in the line of duty. 38 U.S.C. � 101 (24); 38 C.F.R. � 3.6 (a). There are several small exceptions carved out for specific medical conditions, such as heart attacks and strokes that occur during a period of ACDUTRA or en route to or from ACDUTRA.

There is a clear distinction between individuals who serve on active duty and those who only serve on active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). An individual seeking VA disability compensation based on ACDUTRA must establish he or she was disabled or died from an injury or a disease incurred or aggravated in the line of duty. 38 U.S.C. � 101 (24).

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including leukemia, organic diseases of the nervous system and stroke residuals, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. �� 1101, 1112, 1137; 38 C.F.R. �� 3.307, 3.309.

Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. � 3.385.

Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. � 3.309 (a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed.

Service connection for cancer which is claimed to be attributable to ionizing radiation exposure during service can be accomplished in three different ways. First, there are [specific] types of cancer which will be presumptively service connected. 38 U.S.C. � 1112 (c). Second, 38 C F R � 3.311 (b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Rucker v. Brown, 10 Vet. App. 67, 71 1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 1996), Combee v. Brown, 34 F.3d 1039, 1043 (Fed Cir 1994)).

A "radiation-exposed veteran" is defined by 38 C.F.R. � 3.309 (d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device, the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946, or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee, or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. � 3.309(d)(3)(n).

The following radiogenic diseases shall be service-connected if they become manifest in a radiation-exposed veteran, provided the rebuttable presumption provisions of 38 C.F.R. � 3.307 are also satisfied; leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchio-alveolar carcinoma, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C. � 1112 (c); 38 C.F.R. � 3.309 (d) (2018).

In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in Sec. 3.307 or Sec. 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. � 3.311 (a) (2018).

For purposes of this section the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. � 3.311(b)(2) (2018).

When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. � 3.310 (a). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disorder. See 38 C.F.R. � 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).

The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. � � 5107 (2012); 38 C.F.R. � 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.

1. Service connection for chronic myelogenous leukemia (CML), claimed as due to exposure to ionizing radiation

The Veteran alleged that he was exposed to ionizing radiation while stationed at the Naval Air Station in Agana Guam from March 24, 1971 to February 28, 1973 with the Fleet Air Wing Two Detachment. His duties were Operations Control Room (OCR) Watch Officer; RPS Custodian; Top Secret Control Officer (TSCO) and Communication Division Officer, Security Manager. He reported that his job was to check A-bombs in the bunker. The Veteran also reported flying P3 aircrafts as well as sea rescues. The P3 missions were for the purpose of tracking Russian submarines and were designed to carry nuclear bombs for submarine warfare.

Top secret documents were declassified in 1999 which showed that nuclear weapons were indeed stored in Guam at the Naval Air Station. These documents included the history of the custody and deployment of nuclear weapons from July 1945 through September 1977 and demonstrated that Guam had a number of tactical nuclear weapons.

Personnel records show that the Veteran had top secret security clearance and was stationed in Guam from approximately March 6, 1971 to February 28, 1973. They do not show that he was exposed to radiation during that time.

A response from the Officer in Charge, Navy Environmental Health Center Detachment (Naval Dosimetry Center) in June 2008 indicates that a review of their exposure registry by name, service number, and social security number revealed no report of occupational exposure to ionizing radiation pertaining to the Veteran. It was determined that there was no evidence of occupational exposure to ionizing radiation for the Veteran.

A response from the Deputy Chief Consultant, Post Deployment Health Service (PDHS), for the Under Secretary of Health, dated April 3, 2018, indicates that the NAVPERS 1161/1, Report of Fitness of Officer shows the Veteran was assigned to Fleet Air Wing Two Detachment, Agana as OCR watch Officer, RPS Custodian, TSCO, and Communications Officer. It noted the Veteran s reports that he worked as a Top Secret Control Officer and Inventory Verifying Officer, which put him in direct contact with nuclear weapons. He stated that, while at weapon locations, he wore a radiation badge, and that while stationed at Guam, he was aboard a nuclear-powered submarine for three days for P-3 aircraft training. The Deputy Chief noted that if the Veteran wore a  radiation badge  as he claims, he would be listed in the Navy s exposure database. However, as noted in the June 2008 report from the Naval Dosimetry Center, a search of records revealed that there was no report of occupational exposure to ionizing radiation pertaining to the Veteran.

It was determined that based on review of the job history, records provided, and INRAD reports, it is unlikely that the Veteran, working in weapons support role, received a radiation dose exceeding 0.5 rem/year.  In this regard, it was also noted that the Health Physics Society, in their position statement PS010-3, Radiation Risk in Perspective, revised in May 2016, states that  The average annual equivalent dose from natural background radiation in the United States is about 3 mSV [0.3 rem].  A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5.0 rem] in the first 17 years of life and about 250 mSV [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data shows evidence of health effects following high-dose exposure (many multiples of natural background).  However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero.

Therefore, the Deputy Chief Consultant concluded that, for 8 calendar years of work (October 1969 the October 1976) in the vicinity of nuclear weapons, the Veteran s radiation dose would not exceed a total effective dose equivalent of 4.0 rem., and since the Veterans  lifetime total radiation dose did not exceed 100 mSv (10 rem) above natural background, it is unlikely that his CML was caused by exposure to ionizing radiation during military service.

In an Advisory Opinion, received in April 2018, the Director of Compensation Service concluded that, based on the information of record and the opinion provided by PDHS, there is no reasonable possibility that the Veteran s CML was the result of exposure to ionizing radiation during service.

The Veteran s military records do not include participation in any radiation risk activity, as defined in 38 U.S.C. � 1112 (c) and 38 C.F.R. � 3.309 (d)(3). Therefore, he is not considered to be a  radiation-exposed  veteran, and he is not entitled to a presumption of service connection for his CML. 38 C.F.R. � 3.309 (d) (2018). However, the Veteran s leukemia is specifically listed as a radiogenic disease under 38 C.F.R. � 3.311 (b)(2). Therefore, the Board finds that the regulation is applicable to this claim.

The record reflects compliance with the development and procedural requirements of the regulation. All indicated radiation dose development was completed; the claims folder was reviewed by the Navy Environmental Health Center Detachment, Deputy Chief Consultant of PDHS for the Under Secretary of Health, as well as the Director of the Compensation and Pension Service. Based on a review of the veteran's pertinent history and appropriate scientific authority, including the findings of the PDHS, she concluded in April 2018 that there is no reasonable possibility that the Veteran s CML was the result of exposure to ionizing radiation during service.

The Board notes that the record contains a January 2006 letter from a VA staff physician, indicating that the Veteran s diagnosed CML was more likely than not caused by his exposure to radiation, and July 2005 VA treatment records showing that the examiner opined that ionizing radiation could have been the cause of the Veteran s CML. However, neither VA physician indicated that they had reviewed the Veteran s claims file, and the January 2006 physician did not provide a rationale for his opinion. Furthermore, the physicians did not indicate that they were aware of the very low level of the Veteran's in-service radiation exposure, and their opinions are essentially based on what the Veteran told him regarding his radiation exposure. As such, the Board finds that the July 2005 and January 2006 VA physicians statements lack probative value, and both are inadequate for evaluation purposes.

The Board also notes that it has considered the Veteran's contention to the effect that his exposure to ionizing radiation in service was greater than the dose estimate reported above. See March 2020 statement from the Veteran s attorney. He has not provided any competent evidence to support this contention. Consequently, the Board has no basis for rejecting the dose estimate reported by the Naval Dosimetry Center.

The Veteran does not contend, and the evidence does not show that his CML is directly related to his active military service.

In this regard, the Veteran was not diagnosed with CML for many years after service, and there is no competent evidence to establish that his CML was due to any event or incident of the Veteran's period of active duty.

There was no evidence of leukemia during active duty or at discharge. Post-service treatment records show a diagnosis and treatment for CML in November 1988, many years after discharge. These records do not indicate that the Veteran's CML was related to his active military service, and there is no probative evidence otherwise linking the current CML to service.

With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of CML, the Board notes that this passage of time weighs significantly against a finding of direct service connection for CML. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Board acknowledges the Veteran's assertion that his CML is due to active military service, including exposure to ionizing radiation in service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his CML and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. This is particularly true where, as here, there is no reference to the disorder in service or for many years later. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his CML. 38 C.F.R. � 3.159 (a)(1), (2) (2018).

The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that CML was initially shown more than one year after the Veteran's discharge from service.

For the reasons and basis stated above, the Board finds that service connection for CML, on a direct or presumptive basis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable.

2. Service connection for residuals of a cerebrovascular accident (CVA or stroke), to include as secondary to chronic myelogenous leukemia (CML), or to radiation exposure

As noted above, the evidence of record shows that for 8 calendar years of work (October 1969 the October 1976) in the vicinity of nuclear weapons, the Veteran s radiation dose would not exceed a total effective dose equivalent of 4.0 rem., and the Veterans  lifetime total radiation dose did not exceed 100 mSv (10 rem) above natural background. Thus, a basis for favorable action due to in-service radiation exposure in service is not presented.

The Veteran had ACDUTRA from June 18, 1981 to July 1, 1981. Service treatment records show he had a stroke in August 1981, after ACDUTRA. They also show that in June 1981, the Veteran reported that he had not received any injuries or had any illnesses while performing ACDUTRA. Post-service treatment records show treatment for residuals of the stroke, including bilateral upper and lower extremity paralysis, facial paralysis, difficulty speaking, frequent forgetfulness and hypertension, more than a year after discharge. See VA treatment records from the Central Texas Health Care System, including the VA Medical Centers in Temple and Waco, and the Outpatient Clinic in Austin, and the Olin E. Teague Veteran s Center in Temple, Texas. These records do not indicate that the Veteran's stroke or its residuals were related to his active military service, including his period of ACDUTRA from June 1981 to July 1981, and there is no probative evidence otherwise linking the stroke or any residuals of the stroke to service. Since the Veteran s stroke occurred after ACDUTRA, and there is no evidence showing that it was related to ACDUTRA, the stroke or its residuals will not be considered as an injury or disease incurred in or aggravated during active service.

There is no other evidence of record, VA or private, showing that the Veteran s stroke in August 1981 or any residuals of the stroke are related to his active military service.

The Board acknowledges the Veteran's assertion that his stroke and its residuals are due to active military service, including exposure to ionizing radiation in service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his stroke and any residuals and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. This is particularly true where, as here, there is no reference to the disorder in service or for many years later. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his stroke or any residuals of his stroke. 38 C.F.R. � 3.159 (a)(1), (2) (2018).

The Veteran also contends that his stroke is directly related to his CML, which he believes is related to his active military service. However, the Board notes that, as discussed above, service connection is denied herein for CML. As such, secondary service connection for a stroke is not warranted. See 38 C.F.R. � 3.310 (2018).

The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran s stroke residuals were initially shown more than one year after the Veteran's discharge from service.

For the reasons and basis stated above, the Board finds that service connection for residuals of a stroke, on a direct or presumptive basis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable.

3. Service connection for loss of sense of smell and loss of sense of taste, to include as secondary to radiation exposure

As noted above, the evidence of record shows that for 8 calendar years of work (October 1969 the October 1976) in the vicinity of nuclear weapons, the Veteran s radiation dose would not exceed a total effective dose equivalent of 4.0 rem, and the Veterans  lifetime total radiation dose did not exceed 100 mSv (10 rem) above natural background. Thus, a basis for favorable action due to in-service radiation exposure in service is not presented.

The Veteran was not diagnosed with loss of sense of smell and loss of sense of taste for many years after service, and there is no competent evidence to establish that his loss of sense of smell or loss of sense of taste are due to any event or incident of the Veteran's period of active duty.

There was no evidence of loss of sense smell or taste during active duty or at discharge. Post-service treatment records show treatment for loss of sense of smell and loss of sense of taste years after discharge. See VA treatment records from the Olin E. Teague Veteran s Center in Temple, Texas dated in 1983. Treatment records from the Central Texas Health Care System, including the VA Medical Centers in Temple and Waco, and the Outpatient Clinic in Austin, dated from March 2005 through February 2006, show the Veteran s complaints of recent progression of loss of taste and smell since his stroke. These records do not indicate that the Veteran's loss of sense of smell or taste were related to his active military service, and there is no probative evidence otherwise linking the loss of sense of smell or loss of sense of taste to service.

The Board acknowledges the Veteran's assertion that his loss of sense of smell and taste are due to active military service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his loss of sense of smell and loss of sense of taste and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. This is particularly true where, as here, there is no reference to the disorders in service or for many years later. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his loss of sense of smell or loss of sense of taste. 38 C.F.R. � 3.159 (a)(1), (2) (2018).

The medical evidence of record shows that the Veteran s loss of sense of smell and taste may be related to his history of stroke in 1981, which the Veteran believes is related to his active military service. However, the Board notes that, as discussed above, service connection is denied herein for residuals of a stroke. As such, secondary service connection for loss of sense of smell and loss of sense of taste is not warranted. See 38 C.F.R. � 3.310 (2018).

For the reasons and basis stated above, the Board finds that service connection for loss of sense of smell and loss of sense of taste is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claims, that doctrine is not applicable.

4. Service connection for right ear hearing loss

The Veteran contends that service connection is warranted for right ear hearing loss because it is related to noise exposure as a pilot.

Service treatment records show the Veteran had bilateral hearing loss, albeit not severe enough for VA compensation purposes, at the time of his entrance into service in May 1969. A 1974 audiological examination shows an increase in hearing loss on the right at 4000 hertz. Audiological testing at the time of the Veteran s discharge in September 1976 again showed right ear hearing loss, but not severe enough for VA compensation purposes. Less than one year later, in August 1977, audiological findings showed a significant increase in hearing loss at 4000 hertz. Audiological findings in December 1980 also showed a significant increasing in right ear hearing loss at 4000 hertz from the September 1976 discharge examination.

The Board notes that there is no evidence of right ear hearing loss severe enough to warrant compensation under VA regulations during active duty or at discharge. However, the Veteran's DD-214 shows that he served with a military occupational specialty (MOS) of airplane pilot; thus, the Board finds that the Veteran's reports of noise exposure are credible and consistent with the circumstances of his service, and the acoustic trauma is deemed to have occurred. The Board notes that the RO has also conceded that the Veteran was subjected to noise exposure in service, and has granted service connection for left ear hearing loss and tinnitus, based on this in-service noise exposure. See March 2007 and February 2020 rating decisions.

The medical evidence of record shows that the Veteran has current right ear hearing loss for VA compensation purposes. See December 2006 VA examination and April 2018 VA medical opinion.

There is no evidence of right ear hearing loss for VA compensation purposes in service or within the one-year presumptive period following discharge. However, there is evidence of a significant threshold shift. Furthermore, the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. � 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Board has attempted to obtain a VA opinion in this case. However, all of the opinions obtained are inadequate. In this regard, the Veteran was afforded a VA audiological examination in December 2006. The Board found the December 2006 examiner s opinion inadequate because the examiner did not discuss the audiological records within the one-year presumptive period following the Veteran s service separation.

As such, in its July 2017 remand, the Board directed that an addendum medical opinion be provided that addressed whether the Veteran s right ear hearing loss was aggravated during service or was present to a greater extent in the presumptive period following service separation. The examiner was specifically directed to address the significance of results of an August 1977 audiological examination for reserve service purposes following the Veteran s October 1976 service separation.

A VA medical opinion was submitted in April 2018. The examiner opined that the claimed right ear hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness, because the Veteran had normal hearing on the right on examination in May 1969 and again on examination in December 1980, almost four years post-discharge. The examiner did not discuss whether the Veteran s pre-existing right ear hearing loss (albeit not hearing loss for VA compensation purposes) was aggravated during active duty, as directed. He also failed to discuss the August 1977 audiological examination, as directed. As such, the opinion is incomplete and therefore, inadequate for evaluation purposes.

Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported in statements and on examination, that he was exposed to noise during active duty as a pilot. Therefore, the Board finds the Veteran's reports credible. He has also provided competent evidence of continuity of symptomatology. Furthermore, as noted above, the Veteran has been granted service connection for left ear hearing loss and tinnitus, based on his reports of noise exposure in service. There is evidence against the claim, in that the VA examiners opined that the Veteran's right ear hearing loss is not related to noise exposure in service. However, the VA examiner opinions are all inadequate for the reasons noted above.

Therefore, weighing the positive and negative evidence, the Board finds that the evidence is at least in equipoise. Thus, resolving reasonable doubt in the appellant's favor, the claim is granted. 38 U.S.C. � 5107 (b) (2012).

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	F. Yankey, 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.


series: legacy

judge_norm: JENNIFER HWA

judge_role: Veterans Law Judge

disposition: denied

disposition: granted

benefit: tdiu

disposition: remanded

benefit: smc

text:
��Citation Nr: 21001000

Decision Date: 01/06/21	Archive Date: 01/06/21

DOCKET NO. 15-43 775

DATE: January 6, 2021

ORDER

As new and material evidence has been received, the claim for service connection for hearing loss is reopened.

As new and material evidence has not been received, the previously denied claim of entitlement to service connection for prostate cancer is not reopened.

Entitlement to service connection for urinary incontinence, claimed as secondary to prostate cancer, is denied.

Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer, is denied.

Entitlement to an initial 70 percent rating, but no higher, for PTSD is granted.

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted from July 1, 2010.

Entitlement to a TDIU prior to July 1, 2010, is denied.

REMANDED

Entitlement to service connection for hearing loss is remanded.

Entitlement to special monthly compensation based on aid and attendance or housebound status is remanded.

FINDINGS OF FACT

1. An unappealed April 2007 rating decision denied reopening of service connection for bilateral hearing loss.  Evidence received since the April 2007 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss.

2.  An unappealed April 2007 rating decision denied reopening of service connection for prostate cancer.  The evidence received since the April 2007 rating decision is either cumulative or redundant of the evidence of record and does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for prostate cancer.

3.  As service connection has not been granted for prostate cancer, service connection or urinary incontinence secondary to prostate cancer is not established.

4.  As service connection has not been granted for prostate cancer, service connection for erectile dysfunction secondary to prostate cancer is not established.

5.  Throughout the initial rating period, PTSD has resulted in severe impairment with deficiencies in most areas.  The Veteran does not have total impairment due to PTSD.

6.  Since July 1, 2010, the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities.

7. Prior to July 1, 2010, the Veteran s was not unable to obtain and maintain substantially gainful employment due to his service-connected disabilities, and there was no evidence of marginal employment or employment in a protected environment.

CONCLUSIONS OF LAW

1.  Evidence received since the April 2007 rating decision is new and material, and the claim of entitlement to service connection for hearing loss is reopened.  38 U.S.C. � 5108; 38 C.F.R. � 3.156 (a).

2.  Evidence received since the April 2007 decision that denied reopening service connection for prostate cancer is not new and material, and the claim is not reopened.  38 U.S.C. � 5108; 38 C.F.R. � 3.156 (a).

3.  The criteria for entitlement to service connection for urinary incontinence, claimed as secondary to prostate cancer, have not been met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

4.  The criteria for entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer, have not been met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

5.  The criteria for a rating of 70 percent, but no higher, for service-connected PTSD are met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code (DC) 9411.

6.  The criteria for entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities have been met from July 1, 2010.  38 U.S.C. � 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16.

7.  Prior to July 1, 2010, the criteria for entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities have not been met.  38 U.S.C. � 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1973 to September 1976.

In his substantive appeal, the Veteran elected to have a videoconference hearing that was scheduled for June 2019.  Subsequently, the Veteran s representative requested to cancel the hearing.

Service Connection

New and Material Evidence

Pursuant to 38 U.S.C. � 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. � 3.156 (a).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.

1. Whether new and material evidence has been received to reopen service connection for hearing loss

An unappealed April 2007 rating decision denied reopening of service connection for hearing loss.  The rating decision found that the Veteran s hearing was within normal limits in service and that there was no evidence that hearing loss was incurred in or caused by service or manifested to a compensable degree within one year of service.

The evidence received since the April 2007 rating decision includes a VA examination dated in September 2012.  The examination noted that the Veteran had a mild hearing loss disability upon enlistment.  This evidence is material, as it relates to the presence of a hearing disability in service.  When considered with the previous evidence of record, it could reasonably substantiate the claim were the claim to be reopened, by triggering the duty to assist.  Accordingly, the claim of entitlement to service connection for hearing loss is reopened.

2.  Whether new and material evidence has been received to reopen service connection for prostate cancer

An unappealed April 2007 rating decision denied reopening service connection for prostatitis or prostate cancer.  The decision found that prostate cancer was not incurred in service and did not manifest within one year of service.  The rating decision denied reopening based on exposure to herbicides because there was no evidence of herbicide exposure in service.

The evidence received since the prior final denial includes the Veteran s statements.  A February 2011 statement from the Veteran reflects his contention that he was exposed to herbicides at Camp Casey, Camp Uijonbu, Camp Pililaau, and Camp Red Cloud from 1975 to 1976.  He stated that Agent Orange was used in those areas.

A January 2013 memorandum reflects that the RO made a formal finding of a lack of information to verify Agent Orange exposure in service.

The Board finds that new and material evidence to reopen the claim has not been submitted.  The evidence submitted since the prior final denial of service connection is redundant of the evidence that was previously of record, as the Veteran had previously submitted statements contending that he was exposed to Agent Orange in Korea.  The RO found that the Veteran was not in Korea during a period when herbicides were used.  The evidence received since the last final rating decision is new, as it was not previously submitted, but is not material.  The newly submitted evidence does not establish that the Veteran was exposed to herbicides during service or that the Veteran s prostate cancer is otherwise related to service.

As the evidence received since the last final denial of service connection is not new and material, the claim for service connection for prostate cancer is not reopened.

3.  Entitlement to service connection for urinary incontinence, claimed as secondary to prostate cancer

4.  Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer

The Veteran seeks service connection for urinary incontinence and erectile dysfunction secondary to prostate cancer.

Secondary service connection is granted where a service-connected disability causes or aggravates the claimed disease or disability.  38 C.F.R. � 3.310.

Because the Veteran is not currently service-connected for residuals of prostate cancer, service connection for urinary incontinence and erectile dysfunction on a secondary basis cannot be granted.  38 C.F.R. � 3.310.

The Veteran does not contend that urinary incontinence or erectile dysfunction were incurred during his active military service and the service treatment records do not show treatment of either of those disabilities.  There are no medical opinions linking the Veteran's urinary incontinence or erectile dysfunction directly to his active military service.

Because there is no legal entitlement to service connection on a secondary basis and no evidence of direct service incurrence, the preponderance of the evidence is against the claims for service connection for urinary incontinence and erectile dysfunction.  Therefore, the claims of entitlement to service connection for urinary incontinence and erectile dysfunction, to include as secondary to residuals of prostate cancer, must be denied.

Increased Rating

5.  Entitlement to an increased rating for PTSD

The Veteran seeks an increased rating in excess of 50 percent for PTSD.  He asserts that his PTSD symptoms impair his social functioning and prevent him from maintaining employment.

A March 2010 rating decision granted an initial 50 percent rating for PTSD, effective from September 2005, the date of the service connection claim.  In February 2011, the Veteran submitted a claim for TDIU, in which he indicated that his service-connected PTSD rendered him unemployable.  In the context of TDIU, new evidence of unemployability related to the underlying condition submitted within one year of the assignment of an initial rating that is less than the maximum sought may constitute new and material evidence under 38 C.F.R. � 3.156 (b).  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Therefore, the claim involves the initial rating for PTSD from September 2005.

PTSD is evaluated (rated) under the general rating formula for mental disorders. See 38 C.F.R. � 4.130, Diagnostic Code 9411.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

The rating criteria for PTSD provide that a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002).  However, a veteran may only qualify for a given disability rating under � 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22; 38 C.F.R. � 4.130.

The Board will consider the evidence of record from the initial date of service connection in September 2005.

In December 2005, the Veteran reported that he was easily upset and irritated and did not have any friends.  He reported that he did not socialize and would rather stay to himself.

A VA treatment record dated in March 2006 noted that the Veteran was experiencing severe emotional distress characterized by dysphoria and agitation.  The record noted serious concentration and attention deficits, memory problems, and poor judgment.  He reported that he actively avoided interaction with others.  His behavior was likely to be inappropriate.  He had poor social skills and was likely to have suicidal ideation.

A May 2009 lay statement from the Veteran s wife noted that he had pulled a gun on her.  She indicated that he  went off  on her in April 2009 calling her names.  She stated that he would sometimes sit and stare into space.

A February 2011 statement from the Veteran s attending physician noted mild dementia.  The physician indicated that the Veteran was not able to do things for himself, required assistance to bathe and dress himself, and could not be left unattended.

The Veteran had a VA examination in August 2011.  He complained of irritability and trouble sleeping.  A mental status examination showed that he did not have impairment of thought processes.  He did not have delusions or hallucinations.  There was no inappropriate behavior and no suicidal or homicidal ideation.  The examination indicated that he was able to maintain his personal hygiene and other activities of daily living.  He had a diagnosis of Alzheimer s dementia and exhibited impairment of his short-term and long-term memory.  His memory problems occurred daily.  He did not have obsessive or ritualistic behavior.  His speech was normal, without illogical or irrelevant speech patterns.  He did not have panic attacks.  He did not have impaired impulse control.  The Veteran reported that depression interfered with his social functioning, as he liked to be alone.  Socially, he reported good relationships with his brothers and his sister.  He had been married for more than 20 years and had three children and two stepchildren.  The examiner opined that the Veteran was functionally impaired by dementia, rather than PTSD.

A May 2013 VA telephone note reflects that the Veteran s wife called to report that the Veteran had threatened her.

The Veteran had a VA examination in April 2015.  The examiner diagnosed PTSD, unspecified depressive disorder, and neurocognitive disorder with behavioral disturbances.  The examiner opined that it was not possible to distinguish the symptoms of the Veteran s diagnosed mental conditions.  The examiner noted occupational and social impairment with occasional decrease in work efficiency.  His PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short and long-term memory, flattened affect, impairment in understanding complex commands, impaired judgment, impaired abstract thinking, and disturbances of motivation and mood.  The Veteran was able to manage his financial affairs.

In an October 2015 statement, the Veteran s wife noted that he is forgetful and sometimes cannot remember how to get to places where he has frequently traveled. She noted that he sometimes forgets the names of co-workers and friends or leaves the lights and water running.  She stated that she has to check to see if the stove is off and indicated that she has to remind him to change his clothes and bathe.

Statements from several friends and family members, received in February 2016, noted that the Veteran struggles with outbursts of anger.  A statement from the Veteran s cousin noted that the Veteran often becomes upset or irate.

The Veteran had a VA examination in October 2017.  The examination noted symptoms of anxiety and sleep impairment.  The Veteran reported that he often feels angry due to his experiences.

In March 2018, the Veteran submitted an independent medical opinion from a private psychologist.  The Veteran was fully alert and oriented.  His language skills were grossly intact.  His thought processes were congruent with mood without any evidence of expressive or comprehensive deficits.  The psychologist noted moderate to severe impairment of daily activities.  The examiner opined that the Veteran does not have dementia, but he has memory impairment due to his PTSD.  The psychologist opined that the Veteran s neurocognitive symptoms are secondary to his PTSD.  The examiner noted that anxiety over his prostate cancer diagnosis in 2004 triggered a PTSD response.  The psychologist opined that the Veteran s neurocognitive symptoms were misdiagnosed in 2011, and there is no evidence to support a dementia diagnosis.  The psychologist concluded that the Veteran is unemployable due to his mental health symptoms.

On review, the Board finds that the evidence shows severe impairment associated with PTSD throughout the initial rating period due to symptoms such as irritability with periods of unprovoked violence, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships.  Accordingly, a 70 percent rating is warranted for PTSD from September 2005.  The VA examinations do not show that the Veteran has total occupational and social impairment as a result of PTSD or manifests any of the symptoms listed in the 100 percent rating criteria, or other symptoms of similar severity, frequency or duration.  The Veteran avoids most social interaction, but he has reported good relationships with his wife, children, and siblings.  His PTSD does prevent him from working, and his occupational impairment is recognized by the grant of a TDIU rating below.  Evaluations during the appeal period shows that he has been well-oriented and is capable of managing his financial affairs.  The evidence does not reflect that he experiences persistent delusions of hallucinations, disorientation to time and place, or gross impairment of communication.  While he has some memory impairment, he does not have memory loss for names of close relatives, his own occupation or name.   Accordingly, the assignment of a 100 percent rating is not warranted.

6.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU)

The Veteran contends that he is unemployable due to his service-connected disabilities.  In a February 2011 claim for TDIU, the Veteran indicated that his service-connected PTSD prevents him from working.  He indicated that the last date of full-time employment was on July 1, 2010.

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating

to 70 percent or more.  38 C.F.R. �� 3.340, 3.341, 4.16(a).  For purposes of TDIU, disabilities of common etiology will be considered a single disability.  Id.  The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable.  Id.  Marginal employment shall not be considered substantially gainful employment. Id.

Service connection is in effect for PTSD (70 percent from September 9, 2005); pes planus (10 percent from August 28, 2003 and 30 percent from September 10, 2011); and dermatophytosis (10 percent from August 28, 2003).  The schedular requirements for TDIU have been met since September 9, 2005.  As noted above, a claim for a TDIU was received in February 2011.

In August 2011, a PTSD examination noted that the Veteran was not employed.  The examination noted that the Veteran was retired due to medical problems.  The examiner opined that the Veteran was impaired with employment due to forgetfulness, urinary incontinence, difficulty walking and standing, and incapacitating headaches.

In March 2018, a private psychologist opined that the Veteran is unemployable due to PTSD.  He opined that, due to the severity of his symptoms, the Veteran has physiological, cognitive, and emotional sequelae that render it unlikely that he could remain employed.  Further, although he has good social skills in a  one on one  situation, his ability to perform work-related tasks including managerial demands, and managing with co-workers, would not be adequate.

The VA medical opinion and the private psychologist s opinion provide favorable evidence in support of a finding of unemployability.  The Board finds that the Veteran's service-connected PTSD has rendered him unemployable since July 1, 2010, his last date of employment.  For the period prior to July 1, 2010, the Veteran was gainfully employed full-time, but the Board notes that there is no evidence that his employment was marginal, nor was he employed in a protected or sheltered environment.  See November 2010 VA Form 21-8940 (Veteran reported that his highest gross earnings per month as a mechanic at Red River Army Depot were $2200.00).  Therefore, the Board finds that TDIU is granted, effective July 1, 2010, but no earlier.  38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for hearing loss is remanded.

The Veteran contends that his hearing loss disability is related to noise exposure in service.

The September 1973 enlistment examination showed audiometric thresholds of 30 at 500 Hertz in the right ear and thresholds of 25, 25, and 30 at frequencies of 500, 1000, and 2000 Hertz in the left ear.  A diagnosis of hearing loss was not noted at enlistment.

A September 2012 VA examination indicated that the Veteran had mild hearing loss in both ears at enlistment.  The examiner opined that the Veteran did not have significant thresholds shifts in service and that his hearing loss is therefore less likely than not related to service.

Because the enlistment examination showed some degree of hearing loss, a medical opinion is necessary to address whether the pre-existing hearing loss was aggravated in service.  The claim is being remanded for an addendum opinion.

2.  Entitlement to special monthly compensation (SMC) based on aid or attendance or housebound status is remanded.

In May 2017, the Veteran s representative submitted a VA examination for housebound status or aid and attendance.  The examination included an evaluation of disabilities that are not service-connected.  A new medical opinion is necessary to determine whether the Veteran s service-connected disabilities render him housebound or in need of aid and attendance.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hearing loss.

(a) The examiner must opine whether it is clear and unmistakable that the Veteran's pre-existing hearing loss was not aggravated beyond the natural progress of the disorder during active service.  In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition.

The examiner s attention is directed to the September 2012 VA examination, which found that the Veteran had hearing loss at enlistment.

2. Schedule the Veteran for an appropriate examination and/or medical opinion to determine whether the Veteran is housebound or in need of the regular aid and attendance of another person as a result of his service-connected PTSD, pes planus, and dermatophytosis.

JENNIFER HWA

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Catherine Cykowski

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.


judge_norm: H N SCHWARTZ

condition: shoulder

text:
��Citation Nr: 21002000

Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 15-07 907

DATE: January 12, 2021

REMANDED

Entitlement to service connection for left shoulder disability is remanded.

Entitlement to service connection for right shoulder disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1970 to May 1974.

In August 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans  Appeals (Board) videoconference hearing in St. Petersburg, Florida.  A transcript of the proceeding is of record.

The Board remanded the Veteran s claims in February 2019, as well as a claim for service connection for an acquired psychiatric disability.  The Agency of Original Jurisdiction subsequently granted service connection for major depressive disorder with anxious distress.  Therefore, the acquired psychiatric disorder claim is no longer before the Board.

1. Entitlement to service connection for left shoulder disability is remanded.

2. Entitlement to service connection for right shoulder disability is remanded.

Upon review of the evidence of record, the Board finds remand is warranted to obtain Social Security Administration records.

The evidence of record indicates the Veteran was in receipt of Social Security Administration (SSA) disability benefits.  See, e.g., October 13, 2009 VA treatment record ( receiving social security  at age 59, i.e. not retirement benefits).  VA has not sought these records and records from SSA may support the Veteran s claim.  Moreover, the Board acknowledges that these records are with a Federal facility and that VA has an increased obligation to obtain records in the custody of a Federal department or agency.  38 C.F.R. � 3.159(c)(2).  Accordingly, remand is also warranted to obtain records from SSA.

The matters are REMANDED for the following action:

Obtain the Veteran s federal records from Social Security Administration.  Document all requests for information as well as all responses in the claims file.

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Gregory T. Shannon, 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.


judge_norm: LAURA E COLLINS

condition: tinnitus

text:
��Citation Nr: 21003000

Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 19-06 966

DATE: January 19, 2021

ORDER

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 evidence is in equipoise as to whether the Veteran s bilateral hearing loss disability is etiologically related to noise exposure in service.

2. The evidence is in equipoise as to whether the Veteran s tinnitus manifested while in service and has continued to the present.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. � 1110, 1154, 5107; 38 C.F.R. �� 3.102, 3.303, 3.385.

2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. � 1110, 1154, 5107; 38 C.F.R. �� 3.102, 3.303(b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1965 to September 1968.

This appeal comes to the Board of Veterans  Appeals (Board) from a rating decision, dated September 2017, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO denied service connection for hearing loss and tinnitus. The Veteran timely appealed.

A Board video hearing was held in September 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).

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; 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).

Exposure to hazardous noise in service

Relevant to both issues, the Veteran contends that he was exposed to hazardous noise in service. In his October 2017 notice of disagreement (NOD), the Veteran wrote,  I was a mechanic on CH-47 Chinook helicopters my whole time in service and in Vietnam. I was constantly around loud noises and aircraft running and flying. I was never in my life around any louder noises, except in the Army. I feel this is what caused my tinnitus and hearing loss.

During his September 2020 hearing, he testified that his main profession while he was in service involved helicopter maintenance. He reported,  We were in what s call[ed] field maintenance, actually, fueling the helicopters. And we did preventative maintenance more or less, changed filters, changed the oil. But we did fly quite a bit on test flights to make sure everything was okay. And I was also a crew chief for a while, which every time the helicopter took off, I was on it. So there s quite a bit of noise.  He noted that he was not issued hearing protection. See Hearing Transcript dated September 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 for both issues: evidence of an in-service disease or injury.

1. 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 August 2017, which showed puretone thresholds, in decibels, as follows:

 	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	20	20	30	60	55

LEFT	25	25	50	65	55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 80 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).

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.

Medical treatment records ranging from February 2008 to July 2017 document that the Veteran s hearing status was noted as good or fair.

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 August 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,

Veteran s hearing thresholds at time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing and Conservation Committee,  a noise induced hearing will not progress once it is stopped.  Therefore, it is my opinion that the Veteran s current hearing loss is less likely than not related to military noise exposure/acoustic trauma.

The Board finds the opinion of the August 2017 VA examiner to be probative, as it 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 Veteran has stated that he believes that his current hearing loss is due to noise exposure in service. Statements from the Veteran and his wife are consistent with each other and with what the Veteran has continued to report about his bilateral hearing loss disability.

In his September 2020 hearing, the Veteran was asked,  When you were in service, did you start to notice that you were having trouble hearing?  He responded,  I think I did& it seemed like things weren t as plain as they were before.  See Hearing Transcript dated September 2020.

The Veteran s wife testified that she knew the Veteran while he was in service. They were married after he separated from service. She noted the hearing loss problem had progressively become worse through the years. She stated,  You have to really get his attention if you re trying to talk to him so, you know, to make sure he hears you. Or you have to raise your voice& You have to make sure you got his attention before you try to have conversation with him.  They began dating in 1968, the year he separated from service. She noted that his hearing loss issues were pretty evident from the beginning of their dating relationship. See Hearing Transcript dated September 2020.

On review, the record contains both positive and negative evidence regarding nexus. That is, the VA provided a negative opinion in August 2017 and the Veteran and his wife provided competent and credible lay statements that his bilateral hearing loss symptoms began within one year of separation from service during the September 2020 hearing.

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.

2. Entitlement to service connection for tinnitus

The Veteran also claims entitlement to service connection for tinnitus. Following a thorough review of the Veteran s medical records, the Board finds that he is entitled to an award of service connection.

The Veteran is competent to describe observable symptoms such as ringing in the ears as these are observable symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002).

In his September 2020 hearing, the Veteran described his tinnitus as  more like bells are ringing.  He testified that it did not happen all the time.  Just most of the time when I lay down in bed it sometimes, some nights it ll hit me. I have a hard time going to sleep.

The Veteran has satisfied the first prong of service connection, the existence of a current disability.

Turning next to evidence of a causal relationship between the present disability and noise during service, the Board finds the weight of the medical evidence supports a nexus. In reaching this determination, the Board finds that the Veteran has competently and credibly reported that his tinnitus began while in service and has continued to the present.

The Veteran had a VA examination in August 2017 in which the VA examiner determined that,  The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  The examiner did not, however, provide a nexus opinion for the Veteran s tinnitus. The Board finds that the August 2017 VA examination is, therefore, not probative as to nexus. A review of the Veteran s August 2017 VA examination showed that the Veteran reported a positive history for recurrent tinnitus. He reported tinnitus 15 to 20 years prior to the examination, circa between 1997 and 2002.

During his September 2020 hearing, the Veteran testified that he began experiencing tinnitus while in service. The Veteran s wife also stated that she had heard him talk about his tinnitus for a really long time.

The Board finds that the evidence is at least in equipoise as to whether the Veteran s tinnitus began in service and has continued to the present. Resolving doubt in his favor, the Veteran s competent and credible reports that his tinnitus began while in service and has continued to the present show continuity of symptomatology. Thus, the Board finds that service connection for tinnitus has been established. 38 C.F.R. � 3.303(b).

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.


judge_norm: S BUSH

condition: back

text:
��Citation Nr: 21004000

Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 17-13 587

DATE: January 25, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a back disability is remanded.

Entitlement to service connection for a bladder disorder is remanded.

FINDING OF FACT

The Veteran does not have current hearing loss in either ear to an extent recognized as a disability for VA purposes.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss are not met.  38 U.S.C. �� 1110, 1112, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from July 31, 1973 to September 4, 1973.

This matter comes before the Board of Veterans  Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2019, the Veteran testified before the undersigned Veterans Law Judge.  The Board remanded the claims on appeal for further development in November 2019.

Notably, during the pendency of this appeal, an August 2020 rating decision awarded service connection for tinnitus.  This issue is accordingly not in appellate status.

1. Entitlement to service connection for bilateral hearing loss is denied.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C. � 1112; 38 C.F.R. �� 3.307, 3.309.  The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. � 3.309(a).  See 38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those 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 indicates that his hearing loss is the result of exposure to acoustic trauma while in service.  His in-service noise exposure is not in dispute.  However, the Board finds that service connection for bilateral hearing loss is not warranted because no current hearing disability exists.

The United States Court of Appeals for Veterans Claims has held that the current disability requirement is satisfied when a claimant  has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or  when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.   Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).  Neither of these criteria is met in this case.  The Veteran filed his claim for service connection for hearing loss in June 2014, and there is no evidence of a diagnosis of hearing loss for VA purposes in the evidence dated just prior to or at the time of the filing of his claim.

The Veteran was afforded a VA examination in February 2020.  Speech audiometry revealed a Maryland CNC speech discrimination score of 94 percent in the right ear and 96 percent in the left ear, and revealed the following pure tone thresholds, in decibels:

	HERTZ

	500	1000	2000	3000	4000

RIGHT	20	25	15	30	35

LEFT	20	20	20	30	35

These findings do not demonstrate bilateral hearing loss for VA compensation purposes.  38 C.F.R. � 3.385.  Moreover, given the lack of current hearing loss, to include within the one-year period following service separation, presumptive service connection is not available.  38 C.F.R. �� 3.303(b), 3.307(a), 3.309(a).

To the extent the Veteran asserts that he has bilateral hearing loss, although he is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability for VA purposes, because such a determination requires specific audiometric findings.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. � 1131 as requiring the existence of a present disability for VA compensation purposes).

REASONS FOR REMAND

2. Entitlement to service connection for a back disability is remanded.

3. Entitlement to service connection for a bladder disorder is remanded.

Remand is warranted, as the February 2020 VA examiner s opinions are inadequate.  Specifically, regarding the back disability, the examiner based her negative opinion on the lack of back pain documented evidence in the Veteran s treatment records and did not discuss his reports of continuity of back symptoms since service.  Regarding the Veteran s bladder disorder, the examiner determined that the Veteran s frequent urination was associated with his diabetes but did not consider his diagnosis of benign prostatic hyperplasia (BPH) and whether it was service-related.  Accordingly, addendum opinions are necessary on remand.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The matters are REMANDED for the following action:

1. Refer the claims file to an examiner other than the February 2020 VA examiner for preparation of an addendum opinion addressing the etiology of the Veteran s back disability.  The entire claims file should be made available to the examiner.  No additional examination is necessary, unless the examiner determines otherwise.

Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran s diagnosed back disability had its onset in or is otherwise related to service.

In addressing this question, the examiner must discuss and assume as true the Veteran s reports of injuring his back from falling off pull-up bars and continuous back symptomology since service (see Board Hearing Transcript at 7-11), and determine, based on the same, whether a nexus between the Veteran s back disability and service is  medically plausible.

Failure to consider the Veteran s lay statements will result in an inadequate opinion.  Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion.  A complete rationale should be given for all opinions and conclusions expressed.  If unable to opine without speculation, please provide a basis for that conclusion.

2. Refer the claims file to an examiner other than the February 2020 VA examiner for preparation of an addendum opinion addressing the etiology of the Veteran s BPH.  The entire claims file should be made available to the examiner.  No additional examination is necessary, unless the examiner determines otherwise.

Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran s diagnosed BPH had its onset in or is otherwise related to service, to include as a result of the documented August 1973 urinary tract infection therein.

In addressing this question, the examiner must discuss and assume as true the Veteran s reports of continuous urinary urgency symptomatology since service (see Board Hearing Transcript at 12-14), and determine, based on the same, whether a nexus between the Veteran s BPH and service is  medically plausible.

Failure to consider the Veteran s lay statements will result in an inadequate opinion.  Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion.  A complete rationale should be given for all opinions and conclusions expressed.  If unable to opine without speculation, please provide a basis for that conclusion.

S. BUSH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	S.S. Mahoney

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.