Citation Nr: 1122871 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 08-02 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability secondary to service-connected T2 N2B squamous cell carcinoma, base of tongue, also claimed as squamous cell carcinoma of the tongue, throat, and neck associated with herbicide exposure. 2. Entitlement to service connection for teeth extraction secondary to service-connected T2 N2B squamous cell carcinoma, base of tongue, also claimed as squamous cell carcinoma of the tongue, throat, and neck associated with herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from June 1963 to June 1967 and December 1967 to October 1969. This matter arises before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2009, the Veteran testified at a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing has been reviewed and is associated with the claims file. FINDINGS OF FACT 1. The competent evidence of record shows that a bilateral hearing loss disability was caused by treatment for the Veteran's service-connected T2 N2B squamous cell carcinoma. 2. The competent evidence of record shows that the Veteran's teeth extraction was caused by treatment for his service-connected T2 N2B squamous cell carcinoma. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability is proximately due to the Veteran's service-connected T2 N2B squamous cell carcinoma. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). 2. Teeth extraction was proximately due to the Veteran's service-connected T2 N2B squamous cell carcinoma. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Previous Board Remand In September 2009, the Board remanded the case to the RO via the Appeals Management Center (AMC) for further development and readjudication of the Veteran's claims. Specifically, the Board ordered the AMC to schedule the Veteran for VA examinations in order to determine the etiology of the Veteran's bilateral hearing loss disability and teeth extraction. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). When remand orders are not complied with, the Board must ensure compliance. However, only substantial compliance, not strict compliance, is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008). VA afforded the Veteran with adequate medical examinations in March 2010 and May 2010. Based on the foregoing, the Board finds that the AMC substantially complied with the September 2009 remand. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In light of the full grant of benefits for the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability and teeth extraction, the Board notes that no further notification or assistance is necessary to develop facts pertinent to the claims at this time. Legal Criteria Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2010). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). With respect to disability claims due to hearing loss, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2010). VA regulations, however, do not preclude service connection for a hearing loss that first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2010). 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) (2010). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Analysis The Veteran contends that treatment for his service-connected T2 N2B squamous cell carcinoma required his doctors to extract his teeth and resulted in a bilateral hearing loss disability. The Board notes that the Veteran was granted service-connection for T2 N2B squamous cell carcinoma by an October 2009 decision review officer decision. At the outset, the Board observes that the competent evidence of record demonstrates both that the Veteran's teeth were extracted and that he had a current bilateral hearing loss disability. Indeed, the Veteran exhibited pure tone thresholds in decibels (dB) of 15 dB at 500 Hertz (Hz), 25 dB at 1000 Hz, 55 dB at 2000 Hz, 75 dB at 3000 Hz, and 80 dB at 4000 Hz for the right ear and 15 dB at 500 Hz, 30 dB at 1000 Hz, 60 dB at 2000 Hz, 65 dB at 3000 Hz, and 70 dB at 4000 Hz for the left ear with speech recognition scores of 88 percent for both ears at his May 2010 VA audiological examination. The Veteran told the examiner that he believed his hearing loss began during or shortly after his treatment for squamous cell carcinoma, including chemotherapy and radiation. However, because there were no audiometric tests available prior to this treatment or since 1969, the examiner could not determine the onset of the Veteran's hearing loss disability. The Veteran had previously told his medical providers that he had trouble hearing since he began chemotherapy. In fact, a VA treatment record dated September 2006 includes this complaint, and the treating resident wrote "Hearing loss likely due to cheotx agents." A previous treatment record dated April 2006 even noted that the Veteran had normal tympanic membranes, ear canals, and auricles with no mention of any hearing loss complaints. The Veteran also submitted an article that reported on a study that found that people having radiation to their heads or necks were 682 percent more likely to experience severe hearing loss as compared to those in the control group. The article explained that the location of the inner ears makes it almost certain that close to 100 percent of the radiation to one's head or neck will reach and affect the inner ears and result in hearing loss. Thus, the Board observes that the compensation and pension examiner was unable to provide a nexus opinion without resorting to speculation, but the Veteran's treating clinician found it "likely" that chemotherapy caused his hearing loss disability. Furthermore, the Veteran provided credible testimony that he did not notice any hearing problems before chemotherapy and only noticed them after his treatment. He also submitted medical literature explaining how radiation therapy causes a hearing loss disability. In light of this evidence, the Board finds that the preponderance of the evidence does not weigh against the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. Thus, service connection for a bilateral hearing loss disability is warranted, and the Veteran's appeal is granted. As for the Veteran's claim of entitlement to service connection for his teeth extraction, the Veteran asserts that his doctor ordered his teeth pulled so that she could provide radiation treatments and so that he could undergo chemotherapy. The Board observes that the Veteran's teeth were removed in May 2006. Then, in October 2009, the Veteran's doctor confirmed the Veteran's statement. She said that she treated the Veteran with chemo and radiation therapy for a locally advanced base of tongue cancer. She then explained that, due to the nature of the treatment, she had to remove all of the Veteran's teeth to assure that there were no potential long term side effects to the jaw. VA also afforded the Veteran with a compensation and pension examination for his teeth in March 2010. The examiner described the problem as "loss of teeth due to cancer treatment" in 2006 prior to radiation therapy. He also said that a panorex showed the Veteran's teeth were in poor condition due to caries and periodontal disease. The panorex also showed numerous areas of decay, periodontal disease, and periapical abscess. Because the Veteran's teeth extraction prior to radiation therapy was based on many factors, including oral hygiene, caries, and periodontal disease, the examiner found that it was less likely than not that the Veteran's teeth extraction was caused by or a result of his squamous cell carcinoma treatment. The examiner then stated that the extractions could have been avoided if the Veteran's teeth were in excellent condition. Nevertheless, the issue before the Board is whether the Veteran's squamous cell carcinoma caused or aggravated his teeth extraction and not whether other factors could have prevented this disorder. Therefore, the March 2010 compensation and pension examiner's opinion is not adequate. Instead, the Board affords great probative value to the Veteran's oncologist's opinion, which stated that she had to remove the Veteran's teeth "due to the nature of the treatment" for his cancer. In other words, the Veteran's oncologist only removed the Veteran's teeth to prevent long term side effects to his jaw that his cancer treatment would cause. She did not remove his teeth because of oral hygiene, caries, periodontal disease, or any other condition related to the Veteran's teeth. Thus, the Board finds that her statement is a positive opinion linking the Veteran's teeth extraction to the treatment of his squamous cell carcinoma. In light of the foregoing evidence, the Board finds that the preponderance of the evidence does not weigh against the Veteran's claim of entitlement to service connection for teeth extraction. Thus, service connection is warranted, and the Veteran's appeal is granted. ORDER 1. Entitlement to service connection for a bilateral hearing loss disability secondary to T2 N2B squamous cell carcinoma, base of tongue, also claimed as squamous cell carcinoma of the tongue, throat, and neck associated with herbicide exposure, is granted. 2. Entitlement to service connection for teeth extraction secondary to T2 N2B squamous cell carcinoma, base of tongue, also claimed as squamous cell carcinoma of the tongue, throat, and neck associated with herbicide exposure, is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs