Citation Nr: 1330918	
Decision Date: 09/25/13    Archive Date: 09/30/13	

DOCKET NO.  10-12 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for chronic tinnitus.

3.  Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel



INTRODUCTION

The Veteran served on active duty from September 1954 to August 1956.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  Jurisdiction of the Veteran's case was later transferred to the RO in St. Louis, Missouri.

Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).

This case was previously before the Board in February 2013, at which time it was remanded for additional development.  The case is now, once more, before the Board for appellate review.  


FINDINGS OF FACT

1.  Bilateral hearing loss is not shown to have been present in service, or within the first year following service discharge, nor is it the result of any incident or incidents of the Veteran's period of active military service, including inservice acoustic trauma.

2.  Chronic tinnitus is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, including inservice acoustic trauma.

3.  Colon cancer is not shown to have been present in service, or within the first year following service discharge, nor is it the result of any incident or incidents of the Veteran's period of active military service, including alleged inservice exposure to ionizing radiation.

CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active military service, nor may sensorineural hearing loss be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  Chronic tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2012).

3.  Colon cancer was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred.  38 U.S.C.A. §§ 501, 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  Currently, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application.  VA notified the Veteran in April 2008 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain.  

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations.  Currently there is no evidence that additional records have yet to be requested, or that additional examinations are in order.  Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.  

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA (including Virtual VA) and private treatment records and examination reports, and various statements by the Veteran's father.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

Service Connection

The Veteran in this case seeks entitlement to service connection for bilateral hearing loss and tinnitus, as well as for colon cancer.  In pertinent part, it is contended that the Veteran's current hearing loss and tinnitus are the result of acoustic trauma, specifically, jet aircraft noise, during his period of active military service.  It is further contended that the Veteran's colon cancer is the result of his exposure to ionizing radiation in his capacity as an air policeman during active military service.  More specifically, it is argued that the Veteran's colon cancer is the result of his proximity to various nuclear devices and/or armaments during that period of active military service.  It is asserted these may have leaked radiation.

In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (2012). 

In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, or a malignant tumor (i.e., cancer) becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (West 2002).

Finally, service connection may be granted for the following diseases where the Veteran was exposed to any source of ionizing radiation:  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, prostate cancer, and any other cancer.  Bone cancer must become manifest within 30 years after exposure, leukemia may become manifest at any time after exposure, and posterior subcapsular cataracts must have become manifest six months or more after exposure.  Other listed diseases must become manifest five years or more after exposure.  Other claimed diseases may be considered radiogenic if supported by competent scientific or medical evidence.  38 U.S.C.A. §§ 501, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.311 (2012).

In summary, service connection for disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by a number of different methods.  Davis v. Brown, 10 Vet. App. 209, 211 (1997); see also Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First a "radiogenic disease" may be service connected on a direct basis after specified developmental procedures are conducted under the framework of 38 C.F.R. § 3.311.  Second, even if the claimed disability is not listed as a radiogenic disease under 38 C.F.R. § 3.311, direct service connection may still be considered by way of inservice incurrence or aggravation therein, including presumptive service connection for chronic diseases.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In that regard, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of hearing loss, tinnitus, or colon cancer.  In point of fact, at the time of a service separation examination in August 1956, the Veteran denied any ear trouble, and similarly denied problems with tumors, rectal disease, or intestinal trouble.  A physical examination of the Veteran's ears, as well as of the abdomen and viscera, and anus and rectum conducted at that time was entirely within normal limits.  Hearing for the whispered voice was 15/15 bilaterally, and no pertinent diagnoses were noted.

Significantly, at the time of a VA general medical examination in December 1957, shortly following the Veteran's discharge from service, there was no evidence of either hearing loss or tinnitus, or, for that matter, carcinoma of the colon.  Moreover, at the time of a private medical examination in April 1966, the Veteran denied any problems with tinnitus, and audiometry was described as "normal."  Significantly, as of the time of a private examination in January 1972, audiometry was once again described as "normal."

The earliest clinical indication of the presence of a potentially chronic hearing loss is revealed by a private medical record dated in July 1973, almost 17 years following the Veteran's discharge from service, at which time audiometry was described as normal, with the exception of a minimal loss at 25 decibels at 4,000 (Hertz) on the right.

The Board observes that, following a private barium enema procedure in August 1973, it was noted that there was "no definite evidence of an intrinsic lesion in the colon."  Not until January 2005, almost 40 years following the Veteran's discharge from service, was there noted the presence of a moderately differentiated adenocarcinoma of the sigmoid colon.  Significantly, at no time preceding or since that diagnosis has the Veteran's carcinoma been attributed to any incident or incidents of his active military service, including ionizing radiation.  

Service records, it should be noted, are negative for the presence of a DD Form 1141, Record of Exposure to Ionizing Radiation, or any equivalent record of occupational radiation exposure.  Moreover, in correspondence of April 2009, the United States Air Force Medical Support Agency (AFMSA) indicated that, following a review of occupational radiation exposure monitoring records in the United States Air Force Master Radiation Exposure Registry (MRER), there was no record of any external or internal radiation exposure data for the Veteran.  Significantly, following an inquiry to the Air Force Safety Center (AFSC) requesting any information they might have regarding the Veteran's radiation exposure history, the AFSC reviewed the Veteran's official personnel records from the National Personnel Records Center, and found no evidence of duties which would have involved close proximity to radioactive nuclear weapon components.  Under the circumstances, no dosimetry was given for the Veteran.  

The Board observes that, at the time of a VA audiometric examination in October 2008, which examination involved a full review of the Veteran's claims folder, the Veteran gave a history of minimal unprotected exposure to hazardous military noise, and no significant civilian noise exposure.  According to the Veteran, he experienced a mild to severe bilateral tinnitus which was constant and tonal, which he attributed to exposure to hazardous military noise.  Audiometric examination revealed pure tone air conduction threshold levels, in decibels, as follows:


HERTZ
500
1000
2000
3000
4000
RIGHT EAR
35
25
25
50
50
LEFT EAR
30
25
45
65
65

Speech recognition ability was 96 percent for both the right and left ears.  In the opinion of the examiner, the Veteran exhibited a mild to moderate sensorineural hearing loss with excellent speech discrimination in both ears.  Moreover, review of the claims folder revealed that the Veteran entered the military with a hearing rating of 15/15.  According to the examiner, the Veteran indicated that he first noticed his hearing loss four to five years ago, too long after his military service for it to have been caused by the military.  Additionally noted was that the Veteran had filed a Compensation and Pension claim just following his discharge from the military, at which time hearing loss and tinnitus were not a part of the claim, indicating that they were not issues at that time and less likely service connected.  According to the examiner, while the Veteran had indicated his tinnitus began while in the military, there was no precipitating event or defined onset.  Nor was there evidence of any combat experience.  In point of fact, a psychological report recommended that the Veteran not have access to weaponry, indicating that his noise exposure was more likely "limited" than "usual" in his duty assignments.  Under the circumstances, it was less likely than not that the Veteran's hearing loss and tinnitus were service connected.

Following a subsequent VA audiometric examination in May 2013, it was noted that a review of the Veteran's claims folder revealed that he entered the military with a hearing rating of 15/15.  Moreover, progress notes from April 1966, including a system review sheet, indicated that "audiometry was normal," and the Veteran specifically denied both hearing loss and tinnitus.  In July 1973, progress notes indicated "audiometry normal with a minimal loss of 25 decibels at 4,000 Hertz in the right ear."  Progress notes from November 1991 indicated "ears normal.  According to the examiner, in 2008, the Veteran reported onset of hearing loss to be around 2003 or 2004.  Given the fact that the Veteran had two normal audiograms in 1966 and 1973, and the fact that the Veteran did not notice a hearing loss until 2003, which was 50 years following his military exposure, in the opinion of the examiner, it was less likely than not that hearing loss was related to military service.  Similarly noted was that the Veteran's tinnitus was less likely than not a symptom associated with his hearing loss.  According to the examiner, although hearing loss and tinnitus were commonly present together, they were not necessarily mutually occurring, and had varying causes, including certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, et cetera.  Significantly, according to the examiner, hearing loss did not cause tinnitus "or vice versa."  Moreover, it was less likely than not the case that the Veteran's tinnitus was caused by or a result of military noise exposure.  This was particularly the case given that the Veteran had specifically denied tinnitus in April 1966, and that service medical records were negative for complaints of tinnitus.  Significantly, the remainder of the Veteran's medical records, to include a July 1973 audiogram, were negative for complaints of tinnitus.  

In an addendum to the aforementioned VA audiometric examination in June 2013, the same VA audiologist who had conducted the May 2013 audiometric examination indicated that he had reviewed the Veteran's separation examination, and that the document in question showed normal whisper tests bilaterally.  Further noted was that, notwithstanding further review of the record, the opinion of the examiner was unchanged from the time of the May 2013 examination.  Significantly, that opinion was to the effect that, given the fact that the Veteran had two normal audiograms in 1966 an 1973, and that the Veteran did not notice a hearing loss until 2003 (which was 50 years following his military exposure), the Veteran's hearing loss was less likely than not related to his military service.

The Board finds the aforementioned VA opinions highly probative, because those opinions were based on a review of the Veteran's entire claims folder, as well as full examinations, including both history and clinical findings.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) [factors for assessing the probative value of a medical opinion are the physician's (or audiologist's) access to the claims file, and the thoroughness and detail of the opinion].  The VA audiologist reviewed the Veteran's claims folder, discussed his medical history, provided well reasoned medical opinions, and alluded to the evidence which supported those opinions.  See Hernandez-Toyens, supra.  Those opinions were to the effect that the Veteran's bilateral hearing loss and tinnitus were not, in fact, the result of inservice noise exposure.  

Regarding the Veteran's claim that his postservice colon cancer was in some way the result of exposure to inservice ionizing radiation, there currently exists no evidence that, while in service, the Veteran was at any time exposed to ionizing radiation.  Moreover, and as noted above, colon cancer was first clinically documented many years following the Veteran's discharge from active military service.  To date, no evidence or opinions have been offered demonstrating a relationship between the Veteran's postservice colon cancer and any incident or incidents of his active service, including alleged inservice exposure to ionizing radiation.  

In evaluating the Veteran's claims, the Board has a duty to assess the credibility and weight to be given to the evidence of record.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  In that regard, and as noted above, the Veteran has attributed his current hearing loss and tinnitus to inservice noise exposure, exposure which, at the present time, has been conceded.  However, there currently exists no evidence that such inservice noise exposure resulted in the hearing loss and tinnitus from which the Veteran currently suffers.  Significantly, not until April 2008, many years following the Veteran's discharge from service, did the Veteran file a claim for service connection for hearing loss/tinnitus or colon cancer.  Moreover, both hearing loss/tinnitus and colon cancer were first shown many years following discharge from service.  Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weight against a claim for service connection.  See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In the case at hand, there is no persuasive evidence suggesting a link between the Veteran's current hearing loss and tinnitus, or colon cancer, and his period of active military service.  

The Board acknowledges the Veteran's statements regarding the origin of the disabilities at issue.  However, the Board rejects those assertions to the extent that they seek to etiologically relate the Veteran's current hearing loss/tinnitus or colon cancer to an inservice incident or incidents.  The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value.  Moreover, the Veteran, as a layperson, is not competent to create the requisite causal nexus for the disabilities at issue.  Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses.  See Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). 

Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current hearing loss or tinnitus, or colon cancer, first persuasively documented many years following service discharge, with any incident or incidents of his period of active military service, including inservice noise exposure, or, in the case of colon cancer, alleged ionizing radiation.  Under the circumstances, the Veteran's claims for service connection must be denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for chronic tinnitus is denied.

Entitlement to service connection for colon cancer, to include as the residual of exposure to ionizing radiation, is denied.


	                        ____________________________________________
	MICHAEL D. LYON
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs