Citation Nr: 18148187 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-63 283 DATE: November 7, 2018 ORDER Entitlement to service connection for a gastrointestinal disorder, to include clostridium difficile pancolitis (claimed as ulcerative colitis), is denied. Entitlement to service connection for hypo-pharyngeal cancer (claimed as tongue cancer residuals), is denied. REMANDED The issue of entitlement to an increased disability rating for bilateral hearing loss, to include an earlier effective date of award, is remanded. The issue of entitlement to an earlier effective date of award for tinnitus is remanded. FINDINGS OF FACT 1. A digestive disorder is not related to any disease, injury, or incident in service, to include exposure to amalgam dental fillings. 2. Hypo-pharyngeal cancer is not related to any disease, injury, or incident in service, to include exposure to amalgam dental fillings. CONCLUSIONS OF LAW 1. The criteria for service connection for a digestive disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for hypo-pharyngeal cancer have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter was last before the Board in November 2017 where it was remanded for additional development. The Board finds that there has been substantial compliance with the directives of the latest remand decision. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2018 notice of disagreement (NOD), the Veteran appears to have challenged a July 2018 rating decision that awarded service connection for bilateral hearing loss disability and tinnitus. The NOD has not been acknowledged by the RO, and is not noted in the Veterans Appeals Control and Locator System (VACOLS). As such, the issues are remanded for issuance of a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Service Connection The Veteran contends that his current tongue cancer residuals and gastrointestinal distress are due to his active duty tenure by way of the dental fillings he received during service. See June 2016 Veteran correspondence (“I have attached various articles and periodicals as well as references supporting my claim for service connected disability due to the mercury fillings inserted into my teeth during my military service.”) Following a careful and thorough review of the entire record, including the aforementioned materials provided by the Veteran, the Board finds that service connection is not warranted for residuals of tongue cancer or for a gastrointestinal disorder. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain listed conditions, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the provider of evidence is deemed competent, the Board must then determine if the evidence provided is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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; 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). 1. Entitlement to service connection for a gastrointestinal disorder, to include clostridium difficile pancolitis (claimed as ulcerative colitis), is denied. 2. Entitlement to service connection for hypo-pharyngeal cancer (claimed as tongue cancer residuals), is denied. The Veteran seeks service connection for a gastrointestinal disorder and for hypo-pharyngeal cancer, which he attributes to his in-service mercury dental fillings. See September 2015 VA Form 21-526EZ (“service connection for residuals of tongue cancer as a result of dental fillings provided by the Army which were later found to be a cancer-causing substance. Residuals include ulcerative colitis.”) From October 1966 to October 1968, the Veteran served on active duty. The Veteran's DD Form 214 states that he did not perform any foreign and/or sea service. Service treatment records, including entrance and separation examinations, are negative for any complaints, diagnoses, or treatment of gastrointestinal disorders or hypo-pharyngeal cancer or related medical issues. Notes in dental treatment records reflect care of cavities through usage of amalgam fillings. See April 1967 Services Rendered “Car # 11-DL-cav-cop-am”). After service, in April 2006, the Veteran was diagnosed with tongue carcinoma which was operated upon and does not currently reflect any ongoing residuals. See September 2015 VA Otolaryngology Note (“Tongue Carcinoma 04/18/06…Per the last note he had some discomfort on that side, but he states that is has since resolved.”) VA treatment records reflect a current diagnosis of pancolitis, originally identified during a March 2012 colonoscopy. See June 2018 VA examination (“The vet has been diagnosed with clostridium difficile pancolitis - not ulcerative colitis - due to chronic antibiotic use to treat NTM (nontuberculous mycobacterium”). In February 2016 and June 2018, two separate VA physicians agreed that there is no medical literature linking mercury dental fillings to tongue cancer. Both experts concluded that there is no evidence that the Veteran's current tongue cancer residuals are related to service. The June 2018 VA examiner similarly concluded that following a review of medical literature, including the materials provided by the Veteran, that there was no link between his pancolitis and amalgam fillings. In making these findings the examiners opined that the Veteran’s fifty-year smoking habit and “chronic use” of antibiotics were respectively the underlying causes of the medical conditions. Based on the evidence, a service connection finding for either hypo-pharyngeal cancer or gastrointestinal disability is unwarranted. First, service connection is not warranted on the basis of in-service incurrence of a chronic disease or continuity of symptomatology thereof since service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To that end, the Veteran does not contend, and the evidence does not suggest, that he experienced symptoms of pancolitis or tongue cancer during service or within one year after service. Instead, treatment records show that both disorders were diagnosed in 2006 and 2012, which was nearly 40 years after separation from service. Second, that tongue cancer and pancolitis are not otherwise related to service, to include the placement of his dental fillings. To that end, the Board accords great probative weight to February 2016 and June 2018 opinions as both were predicated on an interview with the Veteran; a review of the record, to include his treatment records; and a physical examination with appropriate testing. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Bloom v. West, 12 Vet. App. 185, 187 (1999). In this regard, although treatment records show that the Veteran received dental fillings in service and that he was diagnosed with pancolitis and tongue cancer after service, the VA physicians agreed that there is no evidence, to include medical literature, that dental fillings cause either disorder. The examiners' opinions are internally consistent, and there is no competent medical evidence of record to refute these opinions. The Board acknowledges the Veteran's statements indicating that in-service dental fillings resulted in his current medical conditions. The Board recognizes that lay assertions may serve 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. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau and Buchanan, both supra. However, the Veteran has not demonstrated that he has the medical expertise to provide an opinion regarding the long-term effects of dental fillings and pancolitis and tongue cancer. Accordingly, the Veteran's contentions are accorded no probative weight and, as such, have been outweighed by the more probative VA examiners' opinions. The Board also notes the articles submitted into evidence which indicate a relationship between dental treatment and disease. The articles are not of probative value here, however. Though each article adds substance to the Veteran’s theory of causation, none addresses the Veteran’s case specifically. The articles are therefore insufficient to establish the element of medical nexus evidence here. See Sacks v. West, 11 Vet. App. 314 (1998). As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased disability rating for bilateral hearing loss, to include an earlier effective date of award. is remanded. 2. Entitlement to an earlier effective date of award for tinnitus is remanded. As noted in the Introduction, the Veteran filed a timely NOD with regard to the RO’s rating decision addressing bilateral hearing loss and tinnitus. A SOC should be issued in response. Accordingly, the case is REMANDED for the following actions: 1. The RO should issue an SOC with respect to the Veteran’s August 2018 NOD. 2. The Veteran should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of the issues raised. 3. The claims file should be returned to the Board for further appellate consideration only if the Veteran files a timely substantive appeal. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus Colicelli, Counsel