Citation Nr: 1212573 Decision Date: 04/05/12 Archive Date: 04/11/12 DOCKET NO. 10-25 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for cancer of the tongue, to include as due to asbestos exposure. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from December 1965 to December 1967; he was a fireman apprentice aboard the USS SARATOGA. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) regional office in Chicago, Illinois (RO). A May 2010 rating decision granted service connection for tinnitus and assigned a 10 percent rating effective July 14, 2009. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in April 2011, and a transcript of the hearing is of record. Additional private medical evidence was added to the file after the May 2010 Statement of the Case, along with a waiver of RO review. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claims for service connection for cancer of the tongue and for bilateral hearing loss; and he has otherwise been assisted in the development of his claims. 2. The 2009 and 2011 private medical opinions in favor of the claim for service connection for cancer of the tongue are more credible than the 2010 VA opinion against the claim. 3. The Veteran's statements that he has bilateral hearing loss due to service are not competent. 4. The Veteran has cancer of the tongue due to service exposure to asbestos. 5. The Veteran does not have a bilateral hearing loss due to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for cancer of the tongue have been met. 38 U.S.C.A. §§ 101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304 (2011). 2. Hearing loss was not incurred in or aggravated by active duty; nor may sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the Veteran in August 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims files after the letter. The Veteran was informed in the August 2006 letter as to disability ratings and effective dates if either of his claims was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Pertinent VA examinations were conducted in April 2010. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his April 2011 hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the April 2011 hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). Analyses of the Claims The Veteran seeks service connection for cancer of the tongue and for bilateral hearing loss. He has contended that his cancer is related to exposure to asbestos in service and that his hearing loss is related to acoustic trauma in service. Because the more credible evidence on file is in favor of the claim for service connection for cancer of the tongue, service connection will be granted. Because the evidence does not show hearing loss due to service, the preponderance of the evidence is against the claim and this issue will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of sensorineural hearing loss, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In order to establish service connection for the claimed disorder, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current 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 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 element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition 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. Savage, 10 Vet. App. at 495-96; 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 Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Cancer of the Tongue October 2006 treatment reports from SwedishAmerican Health Systems reveal that the Veteran underwent direct laryngoscopy and biopsy, as well as a left modified radical neck dissection. The diagnosis was squamous cell carcinoma, left base of the tongue, with metastatic disease in the left neck. According to an August 2009 statement from G. T. Bryan, M.D., a radiation oncologist with the OSF Center for Cancer Care, the Veteran had been treated with radiation and chemotherapy for his metastatic poorly differentiated squamous cell carcinoma of the tongue. Dr. Bryan concluded that it is as likely as not that the Veteran's cancer could have been a result of his military service. Also on file is a September 2009 statement from A. Khan, M.D., of the OSF Saint Anthony Center for Cancer Care, in which it is also concluded that it is as likely as not that the Veteran's cancer could have been a result of his military service. According to an April 2010 VA evaluation by a VA physician, who reviewed the claims file, the Veteran denied a history of smoking or more than occasional social drinking and denied exposure to asbestos after service. The assessment was invasive squamous cell carcinoma of the tongue with metastatic disease to the right hip and spine. The examiner opined that it was not likely that the Veteran's cancer is due to asbestos exposure in service or any other exposure related to his duties as a fireman's apprentice aboard the USS SARATOGA because cancer of the tongue is not known to be associated with asbestos exposure. It was noted that risk factors were tobacco, alcohol, and HPV virus and that it appeared to be a "stretch" to attribute the Veteran's cancer to his time in service 45 years ago with no definitive risk factor. According to information from the National Cancer Institute, added to the file in May 2010, asbestos has been used to insulate boilers, steam pipes, and water pipes and some studies have suggested a link between exposure to asbestos and cancer of the throat. The Veteran testified at his travel board hearing in April 2011 that he worked around pipes wrapped in asbestos in the boiler-room of an aircraft carrier in service, that he was diagnosed with throat cancer in 2006, that his cancer has metastasized to other areas of his body, and that his private cancer doctor has related his cancer to service exposure to asbestos. According to April and May 2011 statements from Dr. Khan, the Veteran was likely exposed to asbestos in service as a fireman's apprentice and the development of his tongue cancer could likely be due to asbestos exposure. Dr. Khan noted that he had submitted a number of medical articles indicating a causative association between cancer of the tongue and exposure to asbestos. Added to the claims files in November 2011 are several medical articles indicating a link between exposure to asbestos and laryngeal carcinoma. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Although there is medical evidence both for and against the Veteran's claim for service connection for cancer of the tongue, the Board finds the evidence in favor of the claim to be more probative. There are opinions from two private cancer specialists who have treated the Veteran for his metastatic cancer in favor of the claim. The April 2011 statement from Dr. Khan notes that independent medical articles added to the file indicate that asbestos is associated with cancer of the throat, which encompasses the Veteran's cancer of the back of the tongue. Moreover, it is noted in M21-1 above that cancers of the larynx and pharynx are associated with asbestos exposure. Consequently, the VA opinion in April 2010, which is not noted to be from a cancer specialist, is incorrect in noting that there is no evidence that cancer of the throat can be associated with exposure to asbestos. Although the VA examiner links cancer of the tongue to tobacco, alcohol, and the HPV virus, there is no evidence that these risk factors are relevant to the Veteran's case. Based on the above, the Board concludes that service connection for cancer of the tongue is warranted. Bilateral Hearing Loss As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these 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 (2010). The Veteran's service treatment records reveal hearing of 15/15 for whispered and spoken voice on evaluation in June 1965 and of 15/15 for whispered voice in November 1967. An uninterpreted Beltone audiogram dated in March 2010 shows bilateral pure tone thresholds from 500 to 4000 hertz under 40 decibels, except for an approximately 45 decibel loss at 4000 on the right. A VA audiological evaluation in April 2010 revealed bilateral hearing within the VA definition of normal from 500 to 4000 hertz, with decibel thresholds at the relevant frequencies of 30 decibels or lower and bilateral speech recognition of 94 percent in each ear. The Veteran complained of hearing loss and tinnitus. The examiner noted that the Veteran's hearing was normal by VA definition. Also on file is a January 2011 VA uninterpreted audiological evaluation, which shows bilateral pure tone thresholds from 500 to 4000 hertz under 40 decibels, except for an approximately 40 decibel loss at 4000 on the right. Speech recognition scores using the Maryland CNC word recognition were 92 percent in each ear. It was noted that the Veteran's hearing had been stable since April 2010. The Veteran testified in April 2011 that he was exposed to acoustic trauma in service without ear protection from the noise in the boiler room, that he was not exposed to acoustic trauma after service discharge, and that he noticed a hearing problem when his wife said that he was tuning her out. Because there is no medical evidence in service, or for several years thereafter, of a hearing loss and because there is no nexus evidence of a current disability due to service, service connection for a bilateral hearing loss is not warranted. When examined by VA in April 2010, the VA audiologist did not find a hearing loss in either ear under the VA definition of hearing loss. Although uninterpreted audiograms in March 2010 and January 2011 appear to show a mild hearing loss, this evidence is more than 42 years after service discharge. The Veteran cannot provide competent medical evidence of a linkage between a current hearing loss and military service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). While the Veteran is competent to report his hearing problems, he is not competent to opine that he has a current hearing loss due to service. In fact, he has not contended that his hearing loss started in service. Consequently, service connection for a bilateral hearing loss is denied. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claims denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cancer of the tongue is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs