Citation Nr: 1751611 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 11-11 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for rectal cancer, to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to surgery at the VA Medical Center (VAMC) in Houston, Texas on September 11, 2007. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty service from May 1971 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Rectal cancer was not manifested during service or within a year of separation from service and is not shown to be related to active service including the Veteran's exposure to ionizing radiation. 2. Bilateral hearing loss was not manifested during service or within a year of separation from service and is not shown to be related to active service. 3. Tinnitus was not manifested during service or within a year of separation from service and is not shown to be related to active service. CONCLUSIONS OF LAW 1. Rectal cancer was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). 2. Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Tinnitus was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2007 and August 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. The service treatment records are absent complaints, findings or diagnoses of rectal cancer, hearing loss, and tinnitus during service. On the Report of Medical Examination in December 1974, the Veteran's hearing was within normal limits. In addition, the Veteran's ears and ear drums were clinically evaluated as normal. On the Veteran's Report of Medical History completed in conjunction with his separation physical, the Veteran denied ever having ear trouble and hearing loss. Thus, there is no medical evidence that shows that the Veteran suffered from hearing loss or tinnitus during service. The Veteran did indicate on his Report of Medical History completed in December 1974 in conjunction with his separation physical that he had had piles or rectal disease; the examiner noted, "Hemorrhoids, no treatment sought." On the Report of Medical Examination, however, the Veteran's anus and rectum were evaluated as normal. Thus, although there is medical evidence of hemorrhoids, there is no medical evidence that shows that the Veteran suffered from rectal cancer during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Malignant tumors and other organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus can be service-connected on such a basis. However, there is no competent evidence of rectal cancer, hearing loss, and tinnitus was not within a year of the Veteran's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. 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 v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Hearing loss and tinnitus were not noted during service. Thus, service connection is not warranted under 38 C.F.R. § 3.303(b). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). If a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309 (d)(2), a rebuttable presumption of service connection arises. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. Rectal cancer, however, is not one of the diseases subject to presumptive service connection under 38 U.S.C. § 1112 (c) and its implementing regulation 38 C.F.R. § 3.309 (d). See Stone v. Gober, 14 Vet. App. 116, 118 (2000). Thus, the Veteran's rectal cancer is not subject to service connection by operation of the statutory presumption. Id. Service connection may be established if a radiation-exposed veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311 (b)(2) or established by competent scientific or medical evidence to be a radiogenic disease), if the VA Undersecretary for Benefits determines that a relationship in fact exists between the disease and the Veteran's exposure in service. See 38 C.F.R. § 3.311. For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311 (b)(2). Cancer of the rectum is listed among the conditions to which the ionizing regulation applies, and the Veteran's rectal cancer manifested more than five years after any possible exposure to radiation. See 38 C.F.R. § 3.311 (b)(5)(iv). Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311 (a)(2). In all other claims involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. When there is potential for exposure to ionizing radiation during military service, DD Form 1141-Record of Occupational Exposure to Ionizing Radiation documents the exposure and is maintained in the service records. There was no DD Form 1141, or its equivalent, in the Veteran's service records; therefore, VA requested confirmation and dose assessment from the Department of the Air Force. In letter dated June 23, 2008, the Deputy Chief, Radiation Protection Division, USAF Radioisotope Committee Secretariat, Air Force Medical Operations Agency, Air Force Medical Operations Agency, Office of the Surgeon General, stated, On 8 April 2008, we sent an inquiry to the Air Force Safety Center (AFSC) requesting radiation dosimetry data for this veteran. The AFSC has reviewed the veteran's official personnel records from the National Personnel Records Center and determined that the veteran had the potential to be exposed to ionizing radiation from his duties in nuclear weapons maintenance. Based on this potential, the AFSC provided an estimated maximum total effective dose equivalent (TEDE), or sum of external and internal dose for the veteran of approximately 0.36 rem. In comparison, according to 10 C.F.R. § 20.1201, the annual TEDE limit for occupationally exposed individuals is 5 rem per year. ... In accordance with the provisions of 38 CFR. § 3.311, in February 2009, all evidence was forwarded to the Under Secretary for Health requesting an opinion concerning the relationship of exposure to ionizing radiation and the Veteran's rectal cancer. In a memorandum dated April 10, 2009, the Chief Public Health and Environmental Hazards Officer, on behalf of the Under Secretary, stated, The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's rectal cancer. (This program is available on the Internet at https://www.niosh-irep.com). The exposure dose was assumed to have occurred as a single acute dose in 1971. This assumption would increase the likelihood for causation of cancer in the IREP calculation. The program calculated a 99th percentile value for the probability of causation of 0.16% (see attachment). ... In view of the above, it is our opinion that it is unlikely that the Veteran's rectal cancer can be attributed to ionizing radiation exposure while in military service. In an April 2009 Advisory Opinion - Radiation Review Under 38 C.F.R. § 3.311, the Director, Compensation and Pension Service, stated, We have received a medical opinion from the Under Secretary for Health that advises it is unlikely that the veteran's rectal cancer resulted from his exposure to ionizing radiation in service. The veteran, born in November 1945, rendered honorable service in the Air Force from May 1971 to May 1975. Munitions Maintenance Specialist was the veteran's military occupational specialty during service. No Record of Occupational Exposure to Ionizing Radiation is contained in the veteran's service records. The Air Force, in a June 2008 letter, indicated that the veteran's total effective dose equivalent (TEDE), or the sum of external and internal dose, of approximately 0.36 rem. The veteran was 25 to 29 years of age during the exposure in service. A rectal mass was discovered by a colonoscopy undertaken in May 2007. A biopsy of the mass conducted the same month confirmed moderately differentiated adenocarcinoma of the rectum. The veteran was 61 years old at the time of diagnosis, rendered 32 years after last exposure to ionizing radiation. No post-service radiation exposure is indicated. The veteran smoked for approximately 15 years before quitting in 1984. His father was treated for prostate cancer. The Under Secretary for Health indicated that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the veteran's rectal cancer. The exposure dose was assumed, to have occurred as a single acute dose in 1971. This assumption would increase the likelihood for causation of cancer in the IREP calculation. The program calculated a 99th percentile value for the probability of causation of 0.16 percent. As a result of the medical opinion, and following review of the evidence in its entirety, it is our opinion that there is no reasonable possibility that the veteran's rectal cancer resulted from exposure to radiation in service. Thus, service connection for the Veteran's rectal cancer is not established pursuant to 38 C.F.R. § 3.311. Alternatively, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In this case, the appellant clearly has a history of rectal cancer, hearing loss, and tinnitus. The remaining question, therefore, is whether there is medical evidence of a relationship between such disabilities and his active duty service. No medical professional, however, has ever related any of these conditions to the Veteran's active duty service. The Veteran underwent VA examination in July 2009 at which time the Veteran reported military noise exposure on the firing range with hearing protection used and military noise exposure on the flight line and around aircraft engines with no hearing protection used. The Veteran also reported post-service occupational and recreational noise exposure with hearing protection used with respect to factory/plant noise and construction work but hearing protection not used as a truck driver or power plant mower. The Veteran was diagnosed as having bilateral sensorineural hearing loss and tinnitus. After review of the file and physical examination of the Veteran, the examiner noted that both enlistment and separation physicals revealed the presence of normal hearing bilaterally and no significant change in hearing noted. The examiner stated that there was no evidence that there were complaints of tinnitus during active service or at enlistment and that the final physical in December 1974 had detailed documentation. The examiner opined that the Veteran's hearing loss and tinnitus were not a result of military noise exposure. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, the medical evidence does not show treatment or diagnosis of these problems until many years after service. Thus, the record is absent competent evidence of rectal cancer, bilateral hearing loss, and tinnitus during active duty service; competent evidence of rectal cancer, bilateral hearing loss, and tinnitus within the year following discharge from service; probative evidence of continuity of symptomatology; competent evidence of a nexus between the Veteran's bilateral hearing loss and tinnitus and his active duty service; and competent evidence of a nexus between the Veteran's rectal cancer and his active duty service, to include conceded exposure to ionizing radiation. The Board must also consider the Veteran's own opinion that his rectal cancer, bilateral hearing loss, and tinnitus are related to active service. In this case, the Board does not find him competent to provide an opinion regarding the etiology of his conditions as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for rectal cancer, bilateral hearing loss, and tinnitus; and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for rectal cancer, to include as due to exposure to ionizing radiation, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran seeks compensation for additional disability resulting from surgery complication, injury to proximal urethra, during surgery on September 11, 2007. Pursuant to 38 U.S.C. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Veteran was found to have rectal carcinoma on colonoscopy and underwent neoadjuvant chemoradiation therapy with six weeks of radiations and treatment with Loda. He was explained the risks, including damage to ureter; benefits; and alternatives to the resection including the need for abdominoperineal resection and permanent colostomy. The Veteran understood the risks, had all questions answered, and wished to proceed. The Veteran underwent an abdominoperineal resection due to rectal adenocarcinoma on September 11, 2007, which was complicated by an injury to proximal urethra. Specifically, the operative note states, As the dissection proceeded however, it was noted that there was an injury to the urethra at the level of the prostatic urethra. At this time, an intraoperative Urology consult was obtained and this injury was repaired in two layers without incident. Please refer to Urology op note. A Surgery Brief OP Note indicates that a 1centimeter small urethral injury at membranous urethra (junction between prostate and urethra) was primarily repaired in 2 layers. Subsequent to September 11, 2007, the Veteran had an indwelling catheter for several months and failed multiple voiding trials. He had Foley catheter removed in January 2008 and passed his voiding trial with a low residual of 23 cc. The Veteran reported incontinence without any urgency or sense that he needed to void as well as weak stream. A cystoscopy was performed in April which demonstrated normal urethra, no lesions, and no structures. 0.5 centimeter stone in prostatic urethra pushed into bladder with scope. The bladder had three to four stones noted (1-2 centimeter chips), no lesions, moderate trabeculation with several small diverticuli. Assessment was status post APR with hypocontractile bladder and bladder stones. In October 2008, a VA urologist noted that there were historical and clinical reasons to suspect that voiding dysfunction was secondary to neuropathic bladder dysfunction following rectal procedures. On his VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran stated that he has learned that not all procedures were followed during his surgery and that he understood that the physician should have taken additional precautions to guard against the nerve damage that he has. The Board finds that a VA medical opinion is warranted to determine whether compensation under 38 U.S.C.A. § 1151 for additional disability caused by urethral injury is warranted. Accordingly, the case is REMANDED for the following action: 1. Copies of all informed consent forms pertaining to the September 11, 2007, abdominoperineal resection should be associated with VBMS. If these records are found to be unavailable, this should be specifically noted in the file. 2. A physician with appropriate expertise located at a facility from which the Veteran has not received treatment should be provided access to Virtual VA and VBMS for a medical opinion. The physician must specify in his or her report that Virtual VA and VBMS records have been reviewed. The physician is requested to comment on whether the Veteran provided informed consent for the medical procedure and to provide an opinion as to whether it is at least as likely as not that the Veteran suffered an additional disability as a result of a September 11, 2007, abdominoperineal resection, and that any such additional disability was proximately caused by (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or (2) by an event not reasonably foreseeable. The physician is requested to provide a discussion of the complications that developed as a result of the Veteran's surgery and explain whether the complications were foreseeable. A complete rationale should be fully discussed for all opinions provided, with specific reference to the evidence of record where appropriate. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After the development requested has been completed, the opinion should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the opinion is deficient in any manner, corrective procedures should be implemented at once. 4. The remaining issue should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs