Citation Nr: 18157371 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-45 783 DATE: December 12, 2018 ORDER Service connection for cervical cancer is denied. Service connection for uterine cancer is denied. Service connection for malignant melanoma is denied. Service connection for endometriosis is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. A malignant tumor did not manifest within one year after the Veteran’s initial period of active duty for training. 2. Cervical cancer, uterine cancer, malignant melanoma, and endometriosis were not shown during service or for years thereafter and are unrelated to an in-service event, injury, or disease, to include claimed exposure to toxic substances. 3. Current bilateral hearing loss is unrelated to the Veteran’s military service. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical cancer have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for uterine cancer have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for malignant melanoma have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for endometriosis have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ADT) from July 1974 to April 1975. She was also a member of the Army Reserve. The Veteran has not been afforded a Department of Veterans Affairs (VA) examination in connection with her service connection claims for cervical cancer, uterine cancer, malignant melanoma, or endometriosis. Generally, a VA examination is necessary prior to final adjudication of a claim 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 veteran qualifies, and (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, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed further below, there is no competent evidence suggesting that the Veteran developed any of the claimed disabilities as a result of an in-service event, injury, or disease. As such, the Board of Veterans’ Appeals (Board) finds that a VA examination is not necessary to decide the claims. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 79. VA has obtained relevant private medical records adequately identified by the Veteran and properly informed her when records were unavailable. The Veteran has not raised any other issues with the duty to notify or duty to assist. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing ADT or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. VA has established certain rules and presumptions for chronic diseases, such as malignant tumors or organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Cervical cancer, uterine cancer, malignant melanoma, and endometriosis. The Veteran contends that service connection for cervical cancer, uterine cancer, malignant melanoma, and endometriosis is warranted due to her military service. Specifically, she asserts that she was exposed to toxic chemicals while training at Fort McClellan, Alabama and Fort Ord, California. Initially, the Board recognizes the Veteran was trained as a medic during service. However, the record does not reflect that she has the training or experience to offer medical opinions as to the etiology of cancer, melanoma, or endometriosis as it relates to exposure to toxic substances. As such, her statements in this regard are considered lay statements and are not competent to substantiate the claim. Service treatment records do not show treatment for cancer, melanoma or endometriosis during the Veteran’s initial period of ADT. In fact, her April 1975 separation examination report shows a normal evaluation of her genitourinary system and a normal pelvic examination. The Veteran’s statements are consistent with this as she asserts that she was diagnosed with cervical dysplasia at age 24 (approximately 1980), one year after her discharge from the Army Reserve, diagnosed with carcinoma in situ in 1981, underwent surgery on her cervix in 1995, and was diagnosed with uterine cancer in 2007 and required surgery. See August 2015 Statement. Importantly, the presumption of in-service incurrence for malignant tumors shown within a year of discharge only applies to periods of service of 90 days or more. 38 C.F.R. § 3.307(a)(1). In this case, the Veteran had one period of service of 90 days or more, which ended in April 1975. As none of the evidence suggests that a chronic disease listed in 38 C.F.R. § 3.309(a) manifested to a compensable degree within one year of April 1975, in-service incurrence cannot be presumed. As noted above, these disorders are not shown during service or for many years after the Veteran’s initial period of ADT. The primary assertion and only suggestion that any of these disabilities are related to service revolves around the Veteran’s contention that she was exposed to toxic chemicals or substances. The Veteran asserts that she was exposed to toxic chemicals or substances while stationed at Fort McClellan and Fort Ord. Service records reflect that the Veteran went to these bases as part of her duties as early as 1974. To support her claim the Veteran submitted a VA article regarding potential exposure at Fort McClellan that lists possible chemical exposure for radioactive compounds, chemical warfare agents and airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town of Anniston. See “Potential Exposure at Fort McClellan” printed April 2016. This article indicates radioactive compounds were used in decontamination training activities in isolated locations on base and that chemical warfare agents were used in decontamination testing activities in isolated locations on base. The evidence does not reflect that the Veteran ever participated in these decontamination training or testing activities or ever visited the isolated locations on base where the compounds and agents were used. As such, exposure to radioactive compounds and chemical warfare agents – that is, an in-service event – is not shown. As for airborne PCBs, the article indicates the off-post plant only produced the PCBs until 1971, years before the Veteran first went to Fort McClellan. Moreover, the article indicates that in 2013 the Agency for Toxic Substances and Disease Registry completed an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility.” Overall, the evidence is against a finding that the Veteran was exposed to PCBs that could have resulted in the claimed disabilities and there is no competent suggestion of a nexus to service. As for Fort Ord, the Veteran submitted website articles that reflect that the Environmental Protection Agency (EPA) placed Fort Ord on the Superfund program’s National Priorities List in 1990 for toxic substances cleanup. EPA’s website indicates that the site contained leaking petroleum underground storage tanks, a 150-acre landfill used to dispose of residential waste and small amounts of commercial waste generated by the base, a former fire drill area, motor pool maintenance areas, small dumpsites, small arms target ranges, an 8,000-acre firing range and other limited areas that pose threats from unexploded ordnance. https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Cleanup&id=0902783#bkground (accessed December 11, 2018). Even assuming the Veteran was exposed to these substances at Fort Ord, which the Board is not finding, the Veteran has not identified any competent evidence relating any of the claimed conditions to exposure to petroleum, residential and commercial waste, or ordnance such as small arms munitions. As such, there is no competent suggestion that the claimed cervical cancer, uterine cancer, malignant melanoma, or endometriosis are etiologically related to an in-service event. Given the above, the Board finds that the preponderance of the evidence is against a finding that the cervical cancer, uterine cancer, malignant melanoma, and endometriosis are related to the Veteran’s military service. Bilateral hearing loss For VA compensation purposes, impaired hearing will be considered 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 evidence of record contains a current diagnosis of bilateral hearing loss which meets the criteria for a hearing disability for VA purposes. At entrance to the Veteran’s initial ADT in May 1974, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In April 1975, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 5 5 5 5 5 As noted above, this is the only period of service of 90 days or more, such that the presumption of service connection for chronic disease could be applicable. See 38 C.F.R. § 3.307(a). As an organic disease of the nervous system such as sensorineural hearing loss is not shown to be present during the Veteran’s initial ADT or in the year following separation from the initial ADT, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Veteran asserts that she was exposed to loud noises on the firing range and that she was exposed to lead dust clouds which she contends can lead to hearing loss. She has submitted no competent evidence indicating that lead dust clouds could result in later hearing loss. While the Veteran was trained as a medic during service, the evidence does not establish that she has the training or experience to opine as to the etiology of hearing loss as it relates to exposure to lead dust. As to that question the Veteran is considered a lay person and her opinion is not competent evidence. Regarding her firing range experience, in an August 2015 statement she asserted that during service she was assigned to Fort McClellan from July 1974 to September 1975 as one of the first Woman’s Army Corps (WAC) trainees to fire weapons in basic training. She asserts that the Army failed to provide her with hearing protection and the noise from firing weapons left a ringing in her ear that continues to this day and that her hearing loss is related to this time in service since she was not exposed to loud noises after service. It is noted that service-connection has already been awarded for tinnitus (ringing in the ears). In an August 2016 statement, the Veteran further reported she was on the firing range as part of her Reserve duties in 1977 and 1978. The Board finds no reason to doubt that the Veteran qualified with small arms which produce loud noises. Thus, the remaining question is whether the Veteran’s current hearing loss is related to in-service noise exposure. The Veteran underwent VA examination in February 2016. The examiner diagnosed bilateral hearing loss and opined that the Veteran’s hearing loss was less likely as not related to military service. She reported that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz and that separation physical indicated normal hearing bilaterally based on pure tone thresholds. An addendum opinion was obtained in April 2016. The same examiner explained that active duty separation physical dated April 1975 indicated normal hearing bilaterally based on pure tone thresholds and reserve duty hearing examination dated October 1977 also indicated normal hearing bilaterally based on pure tone thresholds. In May 2016 the same VA examiner explained that after reviewing the examination results, active duty separation physical dated April 1975 indicated normal hearing bilaterally based on pure tone thresholds and reserve duty hearing examination dated October 1977 also indicated normal hearing bilaterally based on pure tone thresholds. She reported that she cannot state what the likely etiology of the hearing loss is, only that the hearing loss occurred sometime after October 1977. She reported that there is also no mention of hearing loss in the private post military records the Veteran submitted from Kaiser Permanente, therefore, it is less likely than not that the Veteran’s hearing loss was caused by or a result of the military noise exposure. Essentially, the VA examiner has not been able to relate the Veteran’s current hearing loss to her military experiences, but ultimately notes that the likely etiology of the hearing loss cannot be stated other than to say it occurred after October 1977. In support of these findings the examiner notes that hearing was normal in October 1977 (the Veteran also denied experiencing hearing loss at that time) and that there is no mention of hearing loss in the private post military records. The Board finds the explanation regarding what could be perceived as uncertainty in the opinion as reasonable. Essentially, the examiner is stating that there is not enough information available to determine when or why hearing loss developed, but based on the evidence of record the hearing loss started after October 1977. The Board recognizes that the Veteran has asserted her hearing loss may be related to experiences on the firing range during and after her initial period of ADT, to include in 1977 and 1978. However, in this case, the medical evidence does not show hearing thresholds meeting the criteria for a hearing loss disability until years after service. The Veteran is competent to attest to the presence of observable symptoms, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, she denied hearing loss in October 1977. She now suggests that her hearing loss is due to weapons firing during service, to include in 1974, 1977, and 1978. However, there is no competent evidence linking her current hearing loss to the noise exposure during service and the VA examiner adequately explained why a more precise opinion could not be offered. Simply put, the evidence of record is against a finding of a nexus between the Veteran’s current hearing loss and an in-service event, injury, or disease. Thus, the claim for service connection for hearing loss is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel