Citation Nr: 1519090 Decision Date: 05/05/15 Archive Date: 05/19/15 DOCKET NO. 08-38 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to dioxins and other environmental toxins. 2. Entitlement to service connection for a lung disability, to include as due to in-service exposure to asbestos, mold, dioxins, and other environmental toxins. 3. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran, his daughter, and C. B., M.D. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. On January 27, 2015, the Veteran appeared and testified at a Board hearing. During the hearing, a number of issues not presently before the Board were raised. However, in February 2015, the Veteran filed claims of service connection for multiple disabilities claimed as secondary to his diabetes mellitus, as well as for a higher rate of special monthly compensation with the RO. Thus, there is no need for the Board to refer these issues to the RO. The Veteran's original appeal also encompassed the issue of entitlement to service connection for laryngeal cancer. In an October 2013 rating decision, the RO awarded service connection for recurrent carcinoma of the larynx, and assigned a 100 percent disability rating, effective from September 27, 2007. The Veteran was notified of the decision and of his appellate rights. The Veteran did not disagree with any aspect of the RO's October 2013 decision awarding service connection for laryngeal cancer, to include the rating of effective date assigned. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of the award). The issues adjudicated below and certified on appeal were framed as, among other things, entitlement to service connection for asbestosis and entitlement to service connection for mold exposure. A review of the Veteran's original claim for VA disability compensation shows that in the section of the claim pertaining to what disabilities were being claimed, the Veteran twice listed "cancer." Later in the claim, the Veteran indicated that he had been exposed to asbestos in service. When asked what disability he believed resulted from his asbestos exposure, the Veteran listed "cancer, asbestosis[,] mold exposure." The Veteran then stated the following: "Due to dorms having been built of asbestos [and] mold growing in walls [and] floor [and] then being sprayed with different chemicals I have cancer and lung conditions." A claim for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, the disability for which the Veteran is seeking service is any cancer or lung disorder that can be attributed to environmental exposures in service, to include asbestos and mold. Notably, "mold exposure" is not in and of itself a disability. Rather, mold exposure would be considered the in-service event or injury to which a current disability could potentially be attributed. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (setting forth the required elements to establish service connection). Further, as will be discussed below, the evidence fails to reveal the Veteran has been diagnosed as having asbestosis. The evidence does, however, reveal a diagnosis of lung cancer. Accordingly, the Board has framed the two issues on appeal as entitlement to service connection for a lung disability, to include as due to mold, asbestos, and/or other environmental exposures, as set forth on the title page of this decision. In this regard, VA medical records show that the Veteran had been diagnosed as having pulmonary tuberculosis in 2005. He was again diagnosed as having such in April 2009. Although tuberculosis could be considered under the umbrella of lung disorders, the Veteran separately claimed service connection for pulmonary tuberculosis, which claim was denied by the RO in August 2010. Although the Veteran filed a notice of disagreement as to that decision and a statement of the case was issued in June 2013, the Veteran failed to perfect an appeal of that issue and the August 201 RO decision is final. The issue of entitlement to service connection for hearing loss is addressed in the Remand portion of this decision. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. A diagnosis of asbestosis or any other lung disability related to asbestos or mold exposure has not been shown. 3. Diabetes mellitus cannot be reasonably disassociated with the Veteran's military service. 4. Lung cancer cannot be reasonably disassociated with the Veteran's military service. CONCLUSIONS OF LAW 1. Diabetes mellitus was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). 2. Lung cancer was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain chronic diseases, including diabetes mellitus and cancer, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). The law further provides that there are certain diseases, such as type II diabetes mellitus and respiratory cancers, that are associated with exposure to "herbicide agents"" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. § 3.309(e). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i).). The Veteran's post-service medical records show diagnoses of diabetes mellitus and lung cancer. His service treatment records, however, show no treatment for diabetes mellitus or any related symptoms, or any indication of lung cancer. Results of a urinalysis conducted as part of the Veteran's April 1964 separation examination was negative for sugar and indicated a specific gravity of 1.013. The Veteran alleges that he was diagnosed as having diabetes mellitus shortly after service and submitted a letter from S. K. who stated that the Veteran had been denied employment within a year of separation from service due to elevated levels of blood sugar demonstrating diabetes at that time. Here, the record establishes that while in service, the Veteran was stationed at Chanute Air Force Base in Illinois. The Veteran has submitted reports from the Environmental Protection Agency (EPA) showing that Chanute Air Force Base is a Superfund site contaminated by various chemicals, including dioxins. In January 2010, the Veteran underwent an Agent Orange registry examination, the results of which revealed diagnoses of, among other things, diabetes mellitus and squamous cell carcinoma of the lung. The examiner reviewed the EPA fact sheets regarding the presence of chemicals and toxins, noting that the fact sheet established "detectible concentrations of dioxins and furans" at Chanute Air Force Base and also indicated that base workers may have been exposed to contaminants in surface soils or surface debris. The examiner then stated that, upon review of the Veteran's service history and medical records, it was the examiner's opinion that the Veteran's lung cancer and diabetes mellitus were "as likely as not" related to service, noting that lung cancer and diabetes mellitus were conditions presumptively related to Agent Orange exposure and pointing out that the EPA fact sheets suggested that the Veteran may have been exposed to dioxins to include Agent Orange in service. Service connection has been established for non-Hodgkin's lymphoma and recurrent carcinoma of the larynx. Each grant was based on a VA examiner's opinions that the Veteran's non-Hodgkin's lymphoma and/or recurrent carcinoma of the larynx were, "as likely as not," related to his exposure to dioxins and other environmental hazards while stationed at Chanute Air Force Base. The record also contains several other positive medical opinions, attributing the Veteran's lung cancer and diabetes mellitus to his exposure to toxic substances while stationed at Chanute Air Force Base. In January 2015, Dr. C. B., who also presented testimony at the Veteran's hearing before the Board, submitted a statement wherein he opined that the Veteran's diabetes mellitus is attributable to the Veteran's exposures while stationed at Chanute Air Force base, noting that medical literature supports an association between exposure to Agent Orange and the subsequent development of diabetes mellitus. Dr. B. also noted that the Veteran did not have a family history of diabetes and that no other medical professional had opined that the Veteran's diabetes was related to something other than his exposure to dioxins and other environmental toxins while stationed at Chute Air Force base. In an August 2009 opinion, G. C., MD, Chief of Otolaryngology at the Loma Linda, California, VA Medical Center found that the Veteran's lymphoma, and larynx and lung cancers were related to his exposure to toxic substances while in service, noting that the Veteran had been exposed to dioxins in service, which had a known etiological relationship with the disease subsequently developed by the Veteran. This opinion is also shared by Drs. G. P., MD., and Dr. C. B. Accordingly, the Board finds that when reasonable doubt is resolved in favor of the Veteran, service connection for diabetes mellitus and for lung cancer is warranted. As discussed in the introduction, the Veteran also alleged in-service exposure to mold and asbestos. The private and VA treatment records fail to show diagnoses of asbestosis or any other pulmonary disorder or cancer related to possible asbestos exposure. Similarly, the records fail to demonstrate that the Veteran has a disability that is specifically attributable to his claimed in-service mold exposure, to include blastomycosis. Accordingly, the Board finds no basis upon which to establish service connection for a lung disability other than lung cancer as part of the claims currently before the Board. ORDER Service connection for diabetes mellitus is granted. Service connection for lung cancer is granted. REMAND Regarding the Veteran's claim of service connection for hearing loss, the evidence demonstrates that the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2014). A September 2007 audiogram confirms that the Veteran has a current disability as defined by 38 C.F.R. § 3.385. Notably, in February 2008, the RO determined that it was necessary to obtain a medical opinion regarding the likelihood that the Veteran's hearing loss was attributable to service. It does not, however, appear that any such medical opinion was ever obtained. Indeed, in December 2011, the RO issued a deferred rating decision wherein it was noted that an opinion request had been prepared in February 2008 but that it appeared as though that request had not been acted upon. The deferred rating decision also noted that the Veteran's personnel records showed that in addition to being an administrative specialist, the Veteran's records indicated an additional military occupational specialty of fire protection, which would be highly probable for noise exposure. To date, it does not appear as though a medical opinion has been obtained in connection with the Veteran's claim. In consideration of this evidence, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (discussing evidence required to trigger VA's duty to provide a medical examination). Accordingly, the matter must be remanded for the Veteran to be afforded a VA examination that addresses the nature and etiology of his current hearing loss. See 38 U.S.C.A. § 5103A(d) (West 2014). In this regard, during the January 2015 hearing, Dr. B. testified as to his belief that the Veteran's hearing loss was the result of an infection related to the Veteran's diabetes mellitus. Unfortunately, it is not evident from the record or from Dr. B.'s testimony what evidence was relied upon to formulate such an opinion. As such, Dr. B.'s opinion cannot be relied upon to support a finding of service connection in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (describing adequacy of medical examinations). On remand, however, consideration should be given to this theory of service connection. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2014). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for hearing loss, to include on a secondary basis to as service-connected disorder, to include his diabetes mellitus. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA audiology examination to determine whether any hearing loss found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The evidence of record in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The audiologist must identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test must also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner must be conducted. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any degree of hearing loss found is related to the Veteran's active duty service. The examiner must also state whether any degree of hearing loss found is due to or aggravated to any degree by any service-connected disorder, to include whether the Veteran's service-connected diabetes mellitus either caused, to include as the result of an infection due to diabetes mellitus, or made chronically worse any hearing loss found. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be adjudicated. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs