Citation Nr: 1548891	
Decision Date: 11/19/15    Archive Date: 11/25/15

DOCKET NO.  15-10 204A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for pulmonary nodules as a result of exposure to ionizing radiation or as a result of exposure to Agent Orange.

2.  Entitlement to an initial compensable rating for service-connected bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Cheri D. Smith, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from August 1952 to June 1956.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  Jurisdiction is with the RO in Oakland, California.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to an initial compensable rating for service-connected bilateral hearing loss REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The evidence does not show that the Veteran was involved in a radiation risk activity that would qualify him as a radiation exposed Veteran.  

2.  The evidence does not show that the Veteran's pulmonary nodules are a radiogenic disease.

3.  The Veteran did not serve in the Republic of Vietnam during the Vietnam era, nor was he in Korea during a period of time when the service department has determined that herbicides were used, or was otherwise exposed to an herbicide agent, to include Agent Orange, during service.

4.  The evidence does not show that the Veteran's pulmonary nodules manifested during service, or within a year of separation from service, or are otherwise related to service.


CONCLUSION OF LAW

The criteria for service connection for pulmonary nodules are not met.  38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must: (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; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In a September 2012 letter, the Veteran was informed of the information that was necessary to substantiate his claim for exposure to ionizing radiation or Agent Orange.  The notice included a Radiation Risk Activity Information sheet to be completed and returned by the Veteran.  The Veteran did not return the Radiation Risk Activity Information sheet to the VA.  Thus, VA has satisfied the duty to notify the appellant.

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  In September 2012 the VA requested copies of the Veteran's service personnel records from the National Personnel Records Center to confirm the Veteran's radiation risk activities.  The VA received a negative response for records.  In a December 2012 memo, the VA determined that the Veteran's personnel records for radiation risk activity were unavailable for review, and that further attempts to obtain the information would be futile.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Factual Background

The Veteran claims entitlement to service connection for pulmonary nodules, which he contends are the result of exposure to ionizing radiation and/or a result of exposure to herbicides, including Agent Orange.  The Veteran's DD 214 shows that he was an airman in the U.S. Airforce, and had completed courses in basic weapons mechanics, and special weapons.  He received the Korean Service Medal.  The Veteran reported being exposed to radiation in Korea from loading 50 megaton thermonuclear bombs onto planes.  In particular, he stated that he was in charge of handling and loading the detonator inside the thermonuclear bombs.  The Veteran included photographs of the planes he loaded and the bomb trucks.  

By way of background, private medical records dated October 2009 showed that a CAT scan indicated the presence of several bilateral pulmonary nodules ranging in size up to approximately 9 mm.  The examiner noted that the left lower lobe appeared stable since a September 2009 CAT scan.  At that time, the Veteran was scheduled for a six month follow up CAT scan examination of the chest.  

VA medical records show that in April 2013, the Veteran presented for a routine follow up appointment, at which time it was noted that he had pulmonary nodules and had failed to show up for a follow-up CAT scan.  In August 2014 it was noted that the Veteran's chest appeared stable since 2009, and that the pulmonary nodules were assumed to be benign and did not need further follow up.
Analysis

Service connection for disability claims due to radiation exposure during service may be established in three ways.  Ramey v. Brown, 9 Vet. App. 40 (1996).  First, by application of 38 U.S.C.A. § 1112(c) (West 2014) as implemented by 38 C.F.R. 3.309(e) (2015), certain types of diseases will be presumptively service connected for radiation-exposed veterans.  Second, enumerated radiogenic diseases may be service-connected provided that certain conditions set out in 38 C.F.R. § 3.311(b) (2015) are met.  Third, service connection may be established on a direct basis, as with any other claimed disability.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

For the first category, a radiation exposed veteran is a veteran who participated in a radiation risk activity during active service.  38 U.S.C.A. 1112(c) (West 2014); 38 C.F.R. § 3.309(d) (2015).  A radiation risk activity consists of: onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki, internment as a prisoner of war in Japan during World War II, presence at a gaseous diffusion plant in Paducah, Kentucky in 1992, and service performed as an employee of the Department of Energy Employees Occupational Illness Compensation Program act of 2000.  38 C.F.R. § 3.309(d)(3)(ii)(A-E) (2015).

Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) (West 2014) and 38 C.F.R. § 3.309(d)(2) (2015) are: Leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gallbladder, primary liver cancer (except cirrhosis or hepatitis B as indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2) (West 2014); 38 C.F.R. § 3.309(d) (2015). 

In this case, the Veteran's self-reported duties during active service are not enumerated radiation-risk activities.  There is no other evidence of record indicating that the Veteran participated in the enumerated radiation-risk activities.  In addition, pulmonary nodules are not listed as a presumptive disease, and therefore, the presumptive provisions of 38 C.F.R. § 3.309(d) (2015) do not apply, and the Veteran's pulmonary nodules may not be presumed to be related to exposure to radiation under 38 U.S.C.A. § 1112(c) (West 2014); 38 C.F.R. § 3.309 (d) (2015).  Thus, the Board finds that the Veteran is not entitled to service connection for pulmonary nodules due to radiation exposure under 38 C.F.R. § 3.309(d) (2015).

The second category under which the Veteran can qualify for service connection for pulmonary nodules is a claim based on exposure to ionizing radiation.  38 C.F.R. § 3.311 (2015).  Where a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) (2015) and/or does not have one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2) (2015), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran has a radiogenic disease and claims exposure to ionizing radiation in service.  Radiogenic disease means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer.  38 C.F.R. § 3.311(b)(2) (2015).  If a claim is based on a disease other than one of the listed diseases in 38 C.F.R. § 3.311(b)(2) (2015), the VA shall consider the claim, provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.  38 C.F.R. § 3.311(b)(4) (2015)

In this case, as the Veteran's pulmonary nodules are not a radiogenic disease specifically listed under 38 C.F.R. § 3.311(b)(4) (2015). Accordingly, the Veteran was required to submit competent scientific or medical evidence indicating that pulmonary nodules are a radiogenic disease.  The Veteran has not submitted such evidence, and there is no other evidence of record indicating that the Veteran's pulmonary nodules are a radiogenic disease.  Thus, because the Veteran's pulmonary nodules have not been established to be a radiogenic disease, the Board finds that he is not entitled to service connection for pulmonary nodules under 38 C.F.R. § 3.311 (2015).

Further, a remand to conduct further development under 38 C.F.R. § 3.311 (2015) is not necessary in this case, and the weight of the evidence demonstrates that the Veteran's lung nodules were not incurred in, or the result of, exposure to ionizing radiation during active service.  There are no favorable competent opinions of record, nor does the evidence otherwise suggest that the Veteran's lung nodules are related to radiation exposure. 

The Veteran also claims entitlement to service connection for his pulmonary nodules due to exposure to herbicides, to include Agent Orange.  Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. §§ 1116 (West 2014); 38 C.F.R. § 3.307 (2015).  Additionally, the United States Department of Defense has confirmed that herbicides, including Agent Orange, were used near the Korean DMZ from April 1968 through July 1969.  Under 38 CFR 3.307(a) (6)(iv) (2015), effective on February 24, 2011, the presumption of herbicide exposure is extended to any veteran who served between April 1, 1968, and August 31, 1971, and in a unit that VA or the Department of Defense (DoD) has determined to have operated in an area in or near the Korean DMZ.  

The Board notes that, in this case, the Veteran did not serve in Korea between April 1, 1968, and August 31, 1971, nor did the Veteran have service in Republic of Vietnam during the Vietnam Era.  Thus, his exposure to herbicides in service cannot be presumed. On a non-presumptive basis, other than noting Agent Orange on his claim for service connection, the Veteran has pointed to no additional evidence regarding his exposure to Agent Orange or herbicides in service.  Upon independent review of the record, the Board has found no other evidence to indicate that the Veteran was exposed to herbicides or Agent Orange during active service.  Thus, the Board concludes that service connection for pulmonary nodules due to herbicide exposure, to include Agent Orange, is denied, as there is no evidence to support exposure to herbicides in service on either a direct or presumptive basis.

Service connection may be presumed for certain chronic diseases that develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2015).  The Board notes that pulmonary nodules are not among the disorders recognized as chronic under the applicable statutory and regulatory provisions.  Thus, the presumptive provisions for chronic diseases do not apply in this case.

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Thus, presumption is not the sole method for showing causation. 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, the veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2014). 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2015).

The Veteran's service treatment records are silent as to any complaints of, or treatment for, pulmonary nodules.  The Veteran's lungs were reported as normal at both his August 1952 entrance examination and at his May 1956 separation examination.  The record shows that the Veteran's pulmonary nodules first appeared on a CAT scan in 2009, 57 years after his separation from service.  See Maxson v. West, 12 Vet. App. 453 (1999) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service).  Thus, the Board finds that the Veteran's pulmonary nodules did not manifest during service, or within a year of separation from service, and there is no competent evidence even suggesting that the Veteran's pulmonary nodules are related to his active service.  

Of record are statements by the Veteran that attribute his lung nodules to his active service and events therein.  The Veteran's statements are lay statements that purport to provide a nexus opinion between service and his lung nodules.  The Board finds the Veteran's statements not competent for this purpose.  Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.   

In that earlier decision, the Federal Circuit stated as follows: "[l]ay 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, 1377 (Fed. Cir. 2007). 

The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. 

In the instant case, the question of whether lung nodules, not visible to the naked eye, are caused by events in service is not something that can be determined by mere observation.  Nor is this question simple. It requires clinical testing to identify the nodules and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported and the events being asserted as the cause.  As such, the Board finds that the Veteran's statements as to how his lung nodules were caused are not competent evidence as to a nexus.  Thus, there is no competent evidence relating his lung nodules to active service.

In summary, the evidence does not demonstrate that the Veteran was exposed to radiation or Agent Orange in service.  Furthermore, there is no competent medical evidence suggesting that the pulmonary nodules are associated with any incident of his service.  Accordingly, given the evidence of record fails to provide a link between the Veteran's pulmonary nodules and service, the Veteran's appeal is denied. 

In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014).

REMAND

The Veteran claims that his service-connected bilateral hearing loss has worsened since his most recent audiometric evaluation in October 2012.

The Veteran was most recently afforded a VA hearing loss and tinnitus evaluation in October 2012.  At that time, audiometric testing results showed the following:

Hertz
1000
2000
3000
4000
Average
Right Ear
15
45
75
85
55
Left Eat
15
30
70
85
50

Speech recognition ability was measured at 84 percent in the right ear and 88 percent in the left ear.  Under Table VI of 38 C.F.R. 4.85 (2015), both ears received a Level II rating.  Application of those levels to Table VII at 38 C.F.R. § 4.85 produced a noncompensable (0 percent) rating.  

In a September 2013 statement, the Veteran reported that his VA ear, nose, and throat doctor told him that his hearing nerves were dead.  Medical treatments records from the Veteran's ear, nose, and throat doctor are not of record.

In December 2013, the Veteran was afforded a VA ear condition examination.  At that time the Veteran reported loss of hearing, and noises like "wind blowing in the ears."  The VA examiner opined that the Veteran did not have an ear or peripheral vestibular condition.  The VA examiner did note that the Veteran had hearing impairment and/or tinnitus.  The VA examiner reported that the Veteran's external ear, ear canal, and tympanic membrane were all normal.  The VA examiner opined that the Veteran's ear or peripheral vestibular conditions did not impact his ability to work.  No audiometric testing was done as part of the December 2013 examination. In January 2014 the Veteran was given an audiometric re-evaluation, the results of which were not included in the record.  Thus, in light of the above, a remand is warranted to afford the Veteran a new VA audiometric evaluation to assess the current severity of his service-connected bilateral hearing loss.

Prior to scheduling the above examination, all outstanding VA hospital and medical records should be obtained and associated with the claims file.  Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  In this regard, the Board notes that the audiometric testing results from December 2013 and January 2014 are not of record.

Accordingly, the case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request authorization to obtain any private treatment records that may support the Veteran's claim for a higher rating for his bilateral hearing loss.  

2.  Obtain all outstanding, pertinent VA medical records, to include the audiometric testing results from 2010 and 2014, and associate them with the claims file.  If any requested outstanding records cannot be obtained, the Veteran should be notified.

3.  Then, schedule the Veteran for a VA audiology examination to determine the current nature and severity of the Veteran's service-connected bilateral hearing loss. The claims folder must be made available to the examiner performing the examination, and the examiner is asked to indicate that he or she has reviewed the claims folder. All indicated tests should be accomplished, and all clinical findings should be reported in detail.

The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz and the resultant average.  A Maryland CNC Test also should be administered to determine speech recognition ability.  The examiner must describe the functional effects of the Veteran's bilateral hearing loss, including on his occupational functioning and daily activities.

4.  After reviewing the record and ensuring that any additional development deemed necessary is completed, readjudicate the claims on appeal.  If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs