Citation Nr: 1605998 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 08-29 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for status-post thyroid cancer. 4. Entitlement to service connection for a nerve disorder of the face. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1970. This appeal came before the Board of Veterans' Appeals (Board) from January and February 2008 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2013. A transcript of the hearing is of record. When this case was before the Board in June 2014, it was decided in part and remanded in part. The record before the Board consists of the Veteran's electronic records in Virtual VA and the Veterans Benefits Management System. The claim for service connection for a nerve disorder of the face is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. A hearing loss disability has not been present during the period of the claim. 2. The Veteran's asthma was not present during service and is not related to service. 3. Thyroid cancer was not present during service or within a year of discharge and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection of a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection of asthma have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection of status-post thyroid cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West. 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in letters issued in January and June 2007 and February 2008, prior to the initial adjudication of the claims. The record reflects that all service treatment records and available and relevant post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing postservice evidence that could be obtained to substantiate a claim; the Board is also unaware of any such evidence. The Veteran was provided examinations to determine whether he has hearing loss disability and whether the thyroid cancer and asthma are related to service, and the Board finds the opinions are adequate. In this regard, the Board notes that in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and properly supported each opinion provided, with consideration of the in-service exposure to environmental hazards. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the previous Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Although the private audiologist associated with the November 2013 audiogram was not contacted, the Board finds no prejudice results. The 2015 VA audio examiner interpreted the private audiogram, and there is no indication that speech discrimination testing was conducted. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system or a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such organic disease of the nervous system and malignant tumor, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. Hearing Loss Disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board has carefully reviewed the evidence of record but finds the probative evidence indicates that the Veteran does not have a hearing loss disability, as defined by VA. The record does not reveal any medical finding or diagnosis of hearing loss disability. In this regard, the Board notes that the Veteran underwent VA audio examinations in February 2007, March 2012, and December 2014 and a private audio examination in November 2013. The records of these examinations document that the results of audiometric testing did not meet the criteria for hearing loss as defined by VA. The private audio record does not suggest that speech recognition testing was performed, but the VA examination records document that speech recognition testing did not meet the criteria for hearing loss as defined by VA. Accordingly, service connection is not warranted for a hearing loss disability. Asthma The Veteran has asserted that his claimed asthma was aggravated during his period of active duty after he was assigned to clean up an oil spill. The record indicates that while he was stationed in Santa Barbara, his unit helped clean up after an oil spill in the Santa Barbara channel between January and March 1969. He has also contended that he was exposed to asbestos while serving on Coast Guard Cutter Bering Strait WHEC 382 between 1966 and 1968. He has reported that he pulled asbestos insulation from the ship during maintenance while in dry dock in Hawaii and the Philippines as well as at sea and was not provided any protective gear for the asbestos removal. Service treatment records show a normal clinical evaluation of the lungs and chest on entrance examination in January 1966 and exit examination in November 1969. In his January 1966 Report of Medical History, the Veteran marked no to the question of "ever had or have you now" concerning asthma. A May 1966 history record again showed a denial of having asthma at that time or in the past. A November 1969 treatment record reveals the Veteran's history of intermittent cough for six months. After examination, the Veteran was diagnosed with allergic bronchitis. A November 1969 separation examination record reveals normal clinical findings for the lungs. The November 1969 Report of Medical History indicates that the Veteran marked no to the question of "ever had or have you now" concerning asthma but marked yes concerning chronic cough as well as ear, nose, and throat trouble. Post-service private treatment records dated in March 1995 reveal a diagnosis of asthma, for which the Veteran was prescribed an inhaler. Prior private medical records dated in 1993 and 1994 reveal no finding, history, or medication indicative of asthma. A January 1997 private treatment record reveals a diagnosis of asthmatic bronchitis, for which the Veteran was prescribed an inhaler. VA treatment records reflect diagnoses of and treatment for asthma beginning in 2009. The VA treatment records note that the Veteran reported a history of asthma up to the age of 12, when he "outgrew" it, and exacerbations of asthma in approximately 1996 and 2005. A January 2015 VA examination record reveals the Veteran's history of asbestos exposure in Hawaii and the Philippines during service. He reported intermittent asthma from ages two to 12 and then from 2001. After examination and review of the record, the examiner determined the asthma was less likely than not incurred in or caused by service. The examiner explained that there was no service medical evidence to support a finding that asthma was present during service and no medical literature to support a finding that the crude oil or asbestos exposure could lead to the development of asthma 30 years later. The examiner added that chest X-ray images showed no asbestosis or other chronic disease that could connect an adverse environmental exposure 30 years prior to the onset of asthma. The Board finds service connection is not warranted for asthma. Initially, the Board finds that although the Veteran has competently reported childhood asthma, the preponderance of the evidence shows that asthma was not present during active duty. The service medical records contain no findings or histories of asthma during service and clinical evaluation was normal, including at separation. The Veteran testified at his hearing that he began having asthma attacks after he was exposed to the crude oil spill in service. He reported a similar history on his September 2008 Form 9. The Board finds the Veteran is competent to report the existence of symptoms of asthma, based on his experience with asthma as a child and adult. The Board finds the history of asthma during service is not probative, however, as it is contradicted by the November 1969 Report of Medical History, which reveals a negative history of asthma; the November 1969 treatment record, which attributes the reported cough to allergic bronchitis; and the 2015 VA examination record, which reveals a history of asthma since 2001. Furthermore, the Board finds the histories of asthma during and since service are inconsistent with the postservice treatment records, which do not reveal evidence, including history, of asthma prior to 1995. Thus, the Board finds asthma was not present during service. Furthermore, the preponderance of the evidence establishes that the asthma is unrelated to service, including any exposure to crude oil, asbestos, or other environmental hazards. A VA examiner provided a probative opinion that the asthma is not related to service. There is no contrary medical opinion. Although the appellant might believe that his asthma is related to service, the record does not suggest the appellant, who is a layperson, is competent to determine the cause of his current asthma. In any event, the Veteran's lay opinion regarding causation is less probative than the medical opinion against the claim. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thyroid Cancer Veteran has asserted that his claimed thyroid cancer was incurred due to in-service herbicide exposure and/or exposure to crude oil. Service treatment records are negative for a diagnosis of or treatment for thyroid cancer. In his November 1969 Report of Medical History, the Veteran marked no to the question of "ever had or have you now" concerning growth, tumor, cyst, and cancer as well as frequent or painful urination. Service personnel records, including deck logs, revealed that the Veteran's assigned vessel was often anchored near Vietnam. The Veteran has asserted that his assigned Coast Guard vessel participated in many combat missions close to the Vietnam shores and was a brown water vessel. He has further discussed installing playground equipment on Vietnam soil as part of his crew's humanitarian work during active duty. In a February 2010 decision, a Decision Review Officer (DRO) conceded the Veteran's exposure to herbicides in Vietnam during active service. The Veteran has submitted numerous studies concerning exposure to herbicides through drinking water, health conditions caused by herbicide exposure, the Santa Barbara oil spill in January 1969, and his ship's proximity to Vietnam while patrolling and anchoring in brown water areas. The medical studies do not report a link between thyroid cancer and exposure to herbicides or other environmental hazard. He also submitted prior Board decisions concerning other veterans with thyroid cancer found to be related to in-service herbicide exposure. Post-service medical records show that the Veteran underwent treatment in 1974 and subsequently for adenocarcinoma of the thyroid. There is no indication in the treatment records that the carcinoma is related to the Veteran's active duty. Lay statements from the Veteran's spouse and other individuals detail his receipt of surgical thyroid and parathyroid resection as well as longstanding radiation treatment for thyroid cancer from 1974 to 1981. A January 2015 VA examination record reveals the Veteran's history of being diagnosed with thyroid cancer in 1974, after which time he underwent a thyroidectomy. He also reported having calcium kidney stones within a year of discharge form service and reported that the problem resolved after the parathyroids were removed. After examination and review of the record, the examiner determined the thyroid cancer was less likely than not incurred in or caused by service. The examiner explained that there was no medical literature to support a finding of herbicide exposure or crude oil as a cause for thyroid cancer. The Board finds service connection is not warranted for thyroid cancer. Initially, the Board finds the preponderance of the evidence shows that thyroid cancer was not present until more than one year after discharge. The service medical records contain no findings or histories of thyroid cancer during service, including at separation, and the initial diagnosis was four years after separation. Furthermore, the Veteran has not reported any symptoms possibly attributable to thyroid cancer during service or claimed that he has been told that the thyroid cancer was longstanding when diagnosed. The Veteran has reported recurrent kidney stones within a year of discharge and has indicated that the kidney stones ceased after his parathyroidectomy. The record does not suggest that the kidney stones were related to the thyroid cancer, however, including as a symptom of the thyroid cancer, and the Board notes that the Veteran has not specifically alleged such a connection. Finally, a VA examiner has provided the opinion that thyroid cancer was not incurred in service. There is no contrary medical opinion. Thus, the Board finds thyroid cancer was not present until more than one year after discharge. Furthermore, the preponderance of the evidence establishes that the thyroid cancer is unrelated to service, including any exposure to crude oil, asbestos, herbicides, or other environmental hazards. Initially, the Board notes that thyroid cancer is not a disease presumptively attributed to herbicide exposure; there must be competent evidence to suggest a connection to any herbicide exposure. There is no such evidence in this case. A VA examiner provided a probative opinion that the cancer is not related to service, including any exposure to environmental hazards. There is no contrary medical opinion. Although the appellant might believe that his thyroid cancer is related to service, the record does not suggest the appellant, who is a layperson, is competent to determine the cause of his current thyroid cancer. In any event, the Veteran's lay opinion regarding causation is less probative than the medical opinion against the claim. The Veteran has submitted Board decisions in which service connection was granted for thyroid cancer as secondary to herbicide exposure. Those cases are distinct, however, because the record included medical opinions linking those Veterans' thyroid cancers to herbicide exposure. This record is absent any such medical evidence, including any medical studies suggesting a link between herbicide exposure and thyroid cancer. Moreover, the record in this case includes a medical opinion indicating that the thyroid cancer is not related to herbicide exposure. In sum, there is no competent evidence that the Veteran's thyroid cancer is related to service. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a hearing loss disability is denied. Service connection for asthma is denied. Service connection for status-post thyroid cancer thyroid cancer is denied. REMAND An addendum opinion is needed from the 2015 VA examiner to determine whether the facial spasm is secondary to the service-connected prostate cancer. Although a probative opinion was obtained as to whether the facial spasm was related to service, the examiner did not provide an opinion as to secondary service connection. The Board finds such an opinion is needed based on January 2015 medical finding that it was "plausible" the Veteran's hemi-facial spasm "may be related to radiation injury to" cranial nerve VII. The Board finds the record is inadequate to determine whether the prostate cancer treatment, which included radiation, resulted in radiation injury to the cranial nerve. In light of these circumstances, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Obtain an addendum opinion from the January 2015 VA examiner as to whether there is a 50 percent or better probability that the facial spasm was caused or permanently worsened by the service-connected prostate cancer, to include the radiation treatment provided for it. The rationale for the opinion(s) must be provided, with consideration of the January 2015 finding that it was plausible the facial spasm was secondary to radiation injury to the cranial nerve. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the prior examiner is not available, all pertinent evidence of record should be made available to and reviewed by another physician with sufficient expertise, who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 2. Undertake any other indicated development. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs