Citation Nr: 1800786 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-14 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure. 3. Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty with the Marine Corps from September 1961 to December 1965. This case comes before the Board of Veterans' Appeals (BVA) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was most recently before the Board in October 2015, where it was remanded for further development, a new audiological examination, and referral to the Under Secretary of Health for preparation of a dose estimate related to the appellant's claim of exposure to ionizing radiation. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand order, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has argued otherwise. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The appellant's current hearing loss disability is less likely than not related to noise exposure he experienced during active service. 2. The appellant's prostate cancer is less likely than not related to his period of active service, to include in-service ionizing radiation exposure. 3. The appellant's non-Hodgkin's lymphoma is less likely than not related to his period of active service, to include in-service ionizing radiation exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for prostate cancer to include as due to ionizing radiation exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). 3. The criteria for service connection for non-Hodgkin's lymphoma to include as due to ionizing radiation exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistant Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, VA must inform claimants of the information and evidence they are expected to provide, as well as the information and evidence VA will seek to obtain on their behalf. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159(b)(1) (2017). VA is also required to advise a claimant of the information and evidence not of record that is necessary to substantiate their claim. 38 U.S.C. §§ 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate their claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). This duty requires the Secretary to assist in obtaining relevant records that the claimant has adequately identified to the VA and to obtain a VA examination or opinion if it is necessary to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant initially filed his claim in August 2011. In April 2012, he was sent a letter informing him of what information VA would seek to obtain on his behalf, and what information VA needed from him. He was also sent a Radiation Risk Activity Worksheet (DD Form 1141) which he returned to VA in April 2012. VA has also obtained the appellant's service treatment records, relevant service personnel records, the appellant's private medical records, and his VA treatment records. Included in those records are the appellant's entrance examination, yearly physical examinations, documentation on numerous incidents of in-service treatments for various conditions, and the appellant's separation examination. The Board also notes that VA has complied with the special development requirements regarding ionizing radiation claims. 38 C.F.R. § 3.311. Specifically, the RO has obtained a dose assessment for the appellant's total in-service exposure to ionizing radiation and then referred the case to the Under Secretary of Benefits for an opinion as to whether sound scientific medical evidence could support the conclusion that it is at least as likely as not that the appellant's claimed disease resulted from ionizing radiation exposure during service. The VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006 ). The Board finds that VA did not have a duty to provide the appellant with an examination relating to his prostate cancer and lymphoma. The appellant's private treatment records confirm his cancer diagnoses. However, the record does not suggest an in-service incurrence of either disease. The appellant was diagnosed with the illnesses in 2011, more than 45 years after his exposure. The appellant's lay testimony is the only evidence linking his service to his current diagnoses. The record does not contain any competent medical evidence to indicate any link between the appellant's cancer diagnoses and his active service. Waters v Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the notion that merely filing a claim or that claimant's generalized conclusory statement regarding nexus entitles the claimant to a VA examination as this would eliminate the carefully drafted statutory scheme). Therefore, the Board finds that no VA examination is required in this case. McLendon, 20 Vet. App. 81. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including an organic disease of the nervous system, like sensorineural hearing loss, and malignant tumors, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is legally presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection for a chronic disease, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, for veterans who participated in a "radiation risk activity" there are certain diseases which are presumptively service-connected. 38 C.F.R. § 3.309 (d). The enumerated diseases include non-Hodgkin's lymphoma, but do not include prostate cancer. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a "radiogenic disease." Prostate cancer and non-Hodgkin's lymphoma are listed as "radiogenic diseases". Under 38 C.F.R. § 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In pertinent part, section 3.311 (b)(1) provides that upon initial review of a claim, when it is determined that (i) a veteran was exposed to ionizing radiation as a result of in service activities; (ii) such veteran subsequently developed a radiogenic disease, including prostate cancer and non-Hodgkin's lymphoma; and (iii) such disease first became manifest with the applicable time period (i.e. five years or more after exposure), before its adjudication, the claim will be referred to the Under Secretary for Benefits for consideration as to whether sound scientific and medical evidence, including an advisory medical opinion from the Under Secretary for Health if necessary, indicates that the claimed disease resulted from exposure to radiation in service. Finally, service connection for a condition claimed to be due to exposure to ionizing radiation can be established by direct service connection, under the legal criteria described above. 38 C.F.R. 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (holding that the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. §5107(b); 38 C.F.R. § 3.102. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis In general, to establish service connection, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Bilateral Hearing Loss The appellant seeks service connection for bilateral hearing loss. He contends that he experienced noise exposure without hearing protection while in service as a Marine Rifleman and that this exposure is the cause of his current hearing loss. The Board finds that the record establishes that the appellant has a current hearing loss disability. In September 2017, the appellant underwent an audiological examination which showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 40 LEFT 20 25 30 25 45 Speech testing using the Maryland CNC word list revealed speech recognition ability of 88 percent in the right ear and of 76 percent in the left ear. The diagnosis was sensorineural type hearing loss. Given the thresholds set forth above, the appellant meets the criteria for a hearing loss disability. 38 C.F.R. § 3.385. Thus, the first element of service connection, a present disability, is met for this claim. With regard to the second element of service connection, the Board conceded in its October 2015 decision that the appellant had in-service noise exposure by virtue of his Military Occupational Specialty (MOS) of Rifleman, as listed on his DD214. 38 U.S.C §1154 (2012). The second element required for entitlement to service connection, an in-service event, is met for this claim. Regarding the third element of service connection, a causal relationship between the present disability and the in-service injury, the record contains two medical opinions that find no causal relationship, and the appellant's lay statements that his current hearing loss is related to his active service. In Nieves-Rodriguez v. Peake, the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. 295, 302 (2008). The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The appellant underwent a VA audiological examination in July 2017. The appellant was present for the examination and his entire file was available for the examiner to review. At that examination, no results were recorded because the examiner found the testing results to be "inconsistent" with "poor inter-test reliability," which rendered the results invalid. However, relying on a April 2014 diagnosis of hearing loss, the examiner still offered an opinion as to the cause of the appellant's hearing loss. The examiner opined that the appellant's hearing loss "is NOT caused by or a result of military noise exposure." The examiner based this opinion on the fact that the appellant entered service with normal whisper testing, that he did not report any hearing loss while in service, and that he had normal whisper testing at separation from service. The examiner further relied on the findings of the 2006 Institute of Medicine (IOM) Noise and Military Service-Implications for Hearing Loss and Tinnitus study that found no scientific basis for delayed onset of hearing loss and that it is unlikely that such delayed effects occur. The examiner, after an in-person examination and review of the record, attributed the appellant's hearing loss to presbycusis (aging). The appellant underwent a second audiological examination in September 2017 provided by a private contractor. The appellant was present for the examination and the examiner was provided access to the appellant's entire file. The examiner considered the appellant's statements that he was exposed to noise from aircraft, rifles, and grenades, all without hearing protection, and that he developed tinnitus while still in service. The examiner also noted that while the appellant did not show any change in hearing from his entrance to exit examinations, the whisper test used at the time is not a reliable measure of hearing acuity. The examiner also considered the appellant's statement that he did not have any hearing loss while in service and, in fact did not notice any hearing issues until about five years before the examination, or over 45 years after separation. Based on all this, the examiner opined that the appellant's hearing loss "is less likely than not related to military noise exposure/acoustic trauma." Both of the above medical opinions were offered by audiologists who are trained and competent to render a medical opinion on the etiology of hearing loss. The Board finds that both opinions are of substantial probative weight because they provide well-reasoned analyses based on a thorough review of the appellant's statements and file. The Board finds that the most probative evidence establishes that the appellant's hearing loss was not present during active duty, nor is there any indication that hearing loss was manifest to a compensable degree in the first year after separation. The appellant does not contend that his hearing loss had its inception during service, nor does he contend that his hearing loss was manifest to a compensable degree within the first year after separation. In fact the appellant has stated that his hearing loss began only about 5 years before his September 2017 VA examination. Although the appellant's hearing loss did not have its inception during active service or for many years thereafter, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). While it is noted in the September 2017 examination that the appellant did develop tinnitus while in service, considering the appellant's statements that his hearing loss began about 5 years before the examination, the examiner found that the appellant's hearing loss was not attributable to his service. The July 2017 examination, in fact, found that natural aging was the cause of his hearing loss. The appellant has stated throughout his claim that he believes his current hearing loss is a direct result of his active service. The Board finds that the appellant is competent to testify about symptoms he has experienced and that his testimony is credible. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, while in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the appellant's hearing loss is a medical question not subject to lay expertise. See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the appellant's hearing loss is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the medical opinions provided in the July 2017 VA examination and the September 2017 independent audiological examination outweigh the appellant's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board concludes that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. 38 U.S.C. §5107; Gilbert, 1 Vet. App. at 53 (1990). Prostate Cancer and Non-Hodgkin's Lymphoma The appellant also seeks service connection for prostate cancer and non-Hodgkin's lymphoma. The appellant contends that both conditions, which were diagnosed in 2011, are causally related to an in-service exposure to ionizing radiation while he worked security at a base where nuclear ordinance was kept. As set forth above, service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. See Davis, 10 Vet. App. at 211; Rucker, 10 Vet. App. at 71. With respect to the first method of establishing service connection, a presumption for service connection is established if a veteran has a specifically enumerated disability and participated in a "radiation risk activity." 38 C.F.R. § 3.309(d). While the enumerated diseases do list lymphoma, although they do not list prostate cancer, the record does not reflect and the appellant has not asserted that he has participated in a defined "radiation risk activity" as defined by the regulation. For example, he did not participate onsite in a test involving the atmospheric detonation of a nuclear device and he did not participate in the occupation of Hiroshima or Nagasaki. Thus, the appellant does not have a basis for presumptive service connection under 38 C.F.R. § 3.309(d). Second, service connection may be established for certain "radiogenic diseases," which include both prostate cancer and non-Hodgkin's lymphoma, pursuant to special development procedures specifically prescribed in 38 C.F.R. § 3.311. However, those development procedures resulted in a conclusion that there was no reasonable possibility that the appellant's prostate cancer or lymphoma had resulted from ionizing radiation exposure in service. The appellant has stated that he was possibly exposed to ionizing radiation while he was stationed at Lake Meade between 1962 and 1965. During that time, the appellant states that he served as security for the installation and had to perform checks of the bunkers where nuclear ordinance was maintained. In February 2017, the RO received a letter from the Department of the Navy, Naval Dosimetry Center which stated that a review of the exposure registry revealed no reports of occupational exposure to ionizing radiation for the appellant. His service treatment records and military personnel records did not contain any indication that he was exposed ionizing radiation either. The case was forwarded to the VA Under Secretary for Health, where the Director, Post 9-11 Era Environmental Health Program (DEHP) issued a May 2017 opinion, on behalf of the Under Secretary. This opinion concluded that it is unlikely that the appellant's cancers were a result of exposure to ionizing radiation during service. It was noted that exposure evaluations on individuals who worked in the vicinity of nuclear weapons was low, below 100 millirem (0.1 rem) in a year and that the appellant's potential exposure was limited. It was also noted that dosimetry data would not have been completed for security force personnel because of the low level of exposure potential. Since there were no dose recommendations for the appellant, and there was no record of the appellant wearing a dosimeter, a dose estimate of 2.0 rem for the years 1962 through 1965 (0.5 rem/year x 4 separate calendar years of service) was assigned, which was above the expected dose potential for someone who performed duties similar to his. The DEHP opinion also noted that the Health Physics Society has found that "below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero." Considering the opinion from DEHP, the Director of Compensation Service issued an opinion that found the appellant's prostate cancer and lymphoma were not the result of exposure of ionizing radiation. They concluded that "since the Veteran's lifetime total radiation dose did not exceed 100 mSv (10 rem) above natural background" radiation exposure, that there was no reasonable probability of causation. The Board finds that the opinion of the Under Secretary of Health has great probative weight, as it was based on a review of the claims folder as well as the factors delineated in section 3.311 (e) such as the veteran's radiation dose, family history, and exposure to other carcinogens, such as through smoking. See Hilkert v. West, 12 Vet. App. 145, 148 (1999). This information was provided to the Under Secretary of Health in a memorandum from the Compensation Service in an April 2017 memorandum. The record contains no competent medical evidence to contradict this opinion. Finally, the appellant has stated it is his belief that his time working security at a nuclear facility could have led to an exposure to radiation, which caused his cancer. Jandreau, 492 F.3d 1372. However, there is no competent medical evidence to support this assertion, and in fact, the only medical opinion is against the appellant's assertion. The appellant's prostate cancer and lymphoma involve pathological processes that are not readily observable to a layperson. The Board finds that in light of the non-observable nature of these pathologies, the issue of the origin of the appellant's prostate cancer and lymphoma is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the medical opinion provided by the office of the Under Secretary of Health outweighs the appellant's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board concludes that the preponderance of the evidence is against the claim of service connection for prostate cancer and non-Hodgkin's lymphoma. 38 U.S.C. §5107; Gilbert, 1 Vet. App. at 53 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for prostate cancer is denied. Service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs