Citation Nr: 0529309 Decision Date: 11/02/05 Archive Date: 11/14/05 DOCKET NO. 03-05 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for malignant fibrous histiocytoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from March 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that determination, the RO inter alia denied the appellant's claims of entitlement to service connection for hearing loss and for malignant fibrous histiocytoma. The appellant disagreed and this appeal ensued. In June 2005, the appellant testified at a hearing before the undersigned Veterans Law Judge designated by the Chairman of the Board to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). A transcript of the hearing is of record. He also testified with regard to a claim for service connection for tinnitus. This claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. The appellant currently has a hearing loss that is related to noise exposure during his active service. 2. The appellant did not serve in the Republic of Vietnam, nor did he visit or perform duties in the Republic of Vietnam. 3. While serving as a refrigeration and air conditioning specialist with two civil engineering squadrons at Forbes Air Force Base (AFB) during the Vietnam era, the appellant was not exposed to Agent Orange or another herbicide agent. 4. The appellant's diagnosed malignant fibrous histiocytoma is not related to service or to alleged exposure to herbicide agents. CONCLUSIONS OF LAW 1. Hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2004). 2. Malignant fibrous histiocytoma, claimed as a result of exposure to a herbicide agent, was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act Before addressing the claims directly, the Board must address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. at 115. In letters dated in November 2001 and January 2003, the RO notified the appellant of the information and evidence necessary to substantiate the claims, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claims, or to tell VA about any evidence or information he wanted VA to obtain for him. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). After VCAA-compliant notice was sent, the claims were adjudicated or readjudicated without "taint" from prior adjudications. Thus, to decide the appeal now would not be prejudicial. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The RO obtained private medical evidence identified by the veteran, and requested, to no avail, records of herbicide exposure from the National Personnel Records Center. There is no identified evidence that has not been accounted for; the veteran's representative has been given the opportunity to submit written argument; and the veteran has testified at a hearing. The Board finds that the duty to assist has been satisfied. Hearing Loss The appellant claims he has a loss of hearing that is related to his active service. He reported that during service he worked as a refrigeration and air conditioning specialist repairing compressors and other industrial equipment at Forbes AFB near Topeka, Kansas, and at various Atlas missile sites in that area. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2004). It generally requires medical evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West , 12 Vet. App. 247, 253 (1999); Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. § 3.303(b) (2004); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). For some factual issues, competent lay evidence may be sufficient. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno, 6 Vet. App. at 469. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The record includes private audiologic evaluations as early as February 1983 and a VA audiometric evaluation in July 2002 indicating a hearing loss corresponding with the requirements of 38 C.F.R. § 3.385 (2004). Thus, the medical evidence shows a current hearing loss and satisfies the initial element of a service-connection claim. The service medical records are silent as to any findings of a hearing loss or of any complaints by the appellant of a hearing loss or of acoustic trauma. The separation examination, in February 1966, included an audiometric evaluation that did not reveal a hearing loss. At that examination, the audiometric measurements in decibels (dB) for various frequencies (in Hertz (Hz)) ranged from zero to not more than 10 dB, which is not indicative of a hearing loss at the time of the appellant's separation from service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) ("[T]the threshold for normal hearing is from 0 dB to 20 dB, and higher threshold levels indicate some degree of hearing loss."). The service personnel records, though, confirm the appellant was a refrigeration and air conditioning specialist at Forbes AFB in the mid-1960s. Based on the appellant's documented occupational category, it can be reasonably concluded that the appellant may have been exposed to acoustic trauma while working on industrial refrigeration and air conditioning equipment. The key element of this claim required medical evidence connecting the current hearing loss with the in-service noise exposure described by the appellant. The medical evidence includes an August 2002 addendum to the VA examination of July 2002, in which the examiner concluded that it was more likely than not that some component of the appellant's hearing loss was the result of his military noise exposure. Although this opinion is based in part on the appellant's recitation of his service history to that examiner, whose opinion in part simply records information provided by the appellant, the opinion also represents the examiner's professional opinion assuming the accuracy of the appellant's history. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); cf. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence."). As noted above, the appellant likely was exposed to acoustic trauma during his service while performing duties as a refrigeration and air conditioning specialist. The examiner's August 2002 opinion, therefore, constitutes a medical opinion favoring a connection between the appellant's service and his current hearing loss. In short, the record includes competent medical evidence of a nexus between the current hearing loss and the appellant's service. In light of the evidence of record and based on this analysis, it is the determination of the Board that the evidence supports the claim of entitlement to service connection for hearing loss. Malignant Fibrous Histiocytoma The appellant claims he has malignant fibrous histiocytoma, a soft tissue sarcoma, which is related to his service. The record includes medical evidence showing that he has malignant fibrous histiocytoma, which was first discovered in July 1999. Malignant fibrous histiocytoma is listed at 38 C.F.R. § 3.309(e) (2004), as a disease related to exposure to Agent Orange in Vietnam. VA regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309(e) (2004), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. A "herbicide agent" is a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i) (2004). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2004). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (2004) will be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a) (2004). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, a "soft-tissue sarcoma" - defined as including malignant fibrous histiocytoma - shall be service- connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2004) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2004) are also satisfied. 38 C.F.R. § 3.309(e) (2004). The record does not show, however, that the appellant served in the Republic of Vietnam during his service. The Department of Defense (DD) Form 214, Report of Transfer or Discharge, revealed the appellant had no foreign service and is silent as to any service in Vietnam. The appellant contends that the separation form is incomplete, and he has submitted copies of additional service personnel records he had obtained from the service department providing a fuller description of his service. These documents confirm he served at Forbes AFB with two civil engineer squadrons and worked as a refrigeration and air conditioning specialist. Nonetheless, these documents do not indicate that he served in Vietnam, nor has the appellant himself alleged he served in Vietnam. Therefore, the presumptive provisions of sections 3.307 and 3.309(e) are not applicable to this case. Nor, as the histiocytoma was first manifested many years after service , is the one-year presumption of section 3.309(a) applicable. The appellant is not precluded, though, from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task that includes the difficult burden of tracing causation to a condition or event during service). The appellant has submitted an April 2002 statement from a private physician, who opines that it "is more likely than not, that the sarcoma was caused by his Agent Orange exposure from his tour of duty in the military services." The appellant maintains he was exposed to Agent Orange while working at Forbes AFB. In support of this contention, he submitted documents showing that Agent Orange was produced in several locations, including at a chemical plant in Jacksonville, Arkansas, which is near Little Rock AFB. At his hearing in June 2005, he noted that aircraft operating from Little Rock AFB were C-130 cargo planes, and that the same aircraft operated from Forbes AFB. He also reported the C-130s operating from one of these airfields often operated from the other, and that these aircraft likely were contaminated by Agent Orange. He also noted that more than two million barrels of Agent Orange were missing, from which he speculated that the some of these barrels were misappropriated for use in clearing or maintaining these air bases. He claimed he occasionally was assigned temporary duties at Forbes AFB that included spraying a defoliant, which he asserts likely was Agent Orange. He has obtained and associated with the claims file statements from four fellow airmen, who attest to their work together in maintenance of the grounds at Forbes AFB and their use of a chemical to control weeds and other vegetation. In this manner, he claims he was exposed to Agent Orange within the United States, rather than in Vietnam. Unfortunately, the only evidence in support of these allegations is the appellant's own statements and those of persons he served with. He is certainly competent to offer his testimony as to readily observable events, such as his work at Forbes AFB and his temporary assignment maintaining the grounds at that airfield. His four friends are similarly competent to confirm these short-term assignments and their use of a chemical of some kind. See Layno, 6 Vet. App. at 469 (lay testimony is competent as to readily observable facts). Moreover, the historical record confirms that Agent Orange was produced at a chemical plant near the Little Rock AFB and that C-130 aircraft operated from both that airfield and from Forbes AFB. The evidence, though, does not indicate that the chemical used was Agent Orange or a similar herbicide, or even that the appellant used such a chemical in the course of his service, or even that such a chemical was used in grounds maintenance. The appellant was a refrigeration and air conditioning specialist, not a chemist, and thus he did not have - and apparently does not currently possess - the competence or expertise to render an informed opinion as to the identification of the chemical he claims to have used. Cf. Grottveit, 5 Vet. App. at 93 (where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required). The appellant has provided the record with various histories of the Forbes AFB and with information as to the uses of Agent Orange for military purposes in Vietnam and for agricultural and industrial uses in the United States through the 1960s. None of this evidence, though, places the appellant in a position to have been exposed to Agent Orange during his service, or even discusses the uses of Agent Orange in the United States. In short, there is no evidence in the claims file to support the allegation that the military used Agent Orange, or some other herbicide, at facilities in the United States, much less specifically at Forbes AFB during the appellant's service. The April 2002 opinion of the private physician, which connects the appellant's service to Agent Orange exposure, is based on the appellant's unsubstantiated allegations. Because the evidence does not include any support for the claimed exposure, and because the record does not show the appellant served in Vietnam, it is the determination of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for malignant fibrous histiocytoma. ORDER Service connection for hearing loss is granted. Service connection for malignant fibrous histiocytoma is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs