Citation Nr: 1808681 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-22 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for post-operative residuals of gall bladder disease, to include as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Oklahoma Department of Veteran Affairs ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1957 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction was subsequently transferred to the RO in Muskogee, Oklahoma, and that office forwarded the appeal to the Board. The Board acknowledges that the issues of entitlement to service connection for heart disease, bilateral nephropathy, a left knee condition with rheumatoid arthritis, a right knee condition with rheumatoid arthritis, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy, and right lower extremity neuropathy, have been perfected and certified to the Board. However, the Board's review of the claims file reveals that in regards to these claims, the Veteran has requested a videoconference hearing. To date, the Veteran's hearing on these issues has not been conducted. Given such, the Board will not address these issues at this time, but they will be the subject of a subsequent decision, if otherwise in order. 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) (West 2012). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no competent diagnosis, finding, or evidence of any post-operative residuals of gall bladder disease in the record. CONCLUSION OF LAW Post-operative residuals of gall bladder disease were not incurred in or aggravated by service, to include as a result of exposure to ionizing radiation. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Post-operative residuals of gall bladder disease A. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist also includes VA's duty to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. Here, upon receipt of the Veteran's claim for service connection for post-operative residuals of gall bladder disease, in a May 2013 VA letter to the Veteran, VA informed the Veteran to provide medical evidence of a diagnosis of the disease and any other medical evidence related to the disease. In a January 2014 VCAA letter, VA informed the Veteran to provide medical evidence specifically related to his gallbladder disease and removal. Additionally, in a May 2017 correspondence, VA again requested any pertinent medical treatment records regarding the Veteran's disabilities on appeal. To date, the Veteran has not provided any medical evidence related to his gallbladder claim or sufficient information in order for VA to obtain any medical evidence that pertains to the Veteran's gallbladder claim. The duty to assist is not a one-way street; a claimant cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991)). Additionally, the claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which the treatment was provided. 38 C.F.R. § 3.159(c)(1)(i). As the Veteran has not provided any medical evidence pertaining to his gallbladder claim, or provided sufficient information so that VA can attempt to obtain any relevant medical records, VA has satisfied its duty to assist the Veteran in obtaining medical evidence relevant to this gallbladder claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). The Veteran was not afforded a VA examination with respect to his claim and the Board finds that an examination is not warranted. A medical examination is necessary when there is (1) "competent evidence of a current disability or persistent or recurrent symptoms of a disability," (2) evidence establishing an in-service "event, injury, or disease," and (3) an "indication" that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). Here, as discussed in more detail below, the Board finds the threshold requirement to determine whether a medical examination is warranted, that there is competent evidence of a current disability, has not been demonstrated as to the Veteran's claim. Therefore, VA has no duty to obtain a medical examination in this regard. See Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Consequently, the "low" threshold for purposes of triggering VA's duty to provide an examination is not met. McLendon, 20 Vet. App. at 81. Based on the foregoing, the Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159 (c) (2017). B. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). The Board notes that gallbladder disease is not one of the listed presumptive diseases. Second, another set of radiogenic diseases found five years or more after service in an ionizing radiation-exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311 (b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311 (b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311 (b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Here, in an April 2013 Statement in Support of Claim, the Veteran requests service connection for gallbladder removal as a result of atomic radiation contamination while service abroad USS Forster during Operation Dominic during service. Although a March 5, 2014 letter from Defense Threat Reduction Agency and United States Strategic Command Center for Combating Weapons of Mass Destruction confirms the Veteran was a participant in the U.S. atmospheric nuclear testing, the evidence of record fails to demonstrate that the Veteran has gallbladder disease or post-operative residuals of gall bladder disease. Service treatment records do not reflect any symptoms of or treatment for gallbladder disease or post-operative residuals of gall bladder disease. Additionally, the Veteran's post-service medical treatment records fail to show any evidence that he had gallbladder disease or evidence that he had his gallbladder removed. Despite multiple requests to the Veteran, as discussed above, the Veteran has not submitted any clinical evidence showing that he either had gallbladder disease or that he had his gallbladder removed. The Board acknowledges the Veteran's lay statement that his gallbladder was removed as a result of exposure to ionizing radiation during service. However, to the extent that the Veteran has offered his opinion that his gallbladder was removed due to service, this statement appears to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Given such, the Veteran is not competent to provide a medical diagnosis or nexus statement. Thus, the evidence of record fails to establish the Veteran has a current disability. Therefore, the first element of service connection, a present disability, is not satisfied. In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223-225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. Without evidence of a current disability, the Board need not address the third element of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. ORDER Entitlement to service connection for post-operative residuals of gall bladder disease, to include as a result of exposure to ionizing radiation, is denied. REMAND Bilateral hearing loss In regards to the Veteran's claim for service connection for bilateral hearing loss, in May 2017, the Board remanded this claim in order to get an addendum opinion. The Board's May 2017 remand requested that the examiner convert the Veteran's in-service audiograms from the American Standards Association (ASA) standard to the International Standards Organization (ISO) - American National Standards Institute (ANSI) units, and then reconsider the converted results, particularly in 1962, and provide an opinion as to whether it is at least as likely as not that any current hearing loss is related to service, including conceded in-service noise exposure. Here, in a June 2017 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to service. However, the VA examiner failed to convert the Veteran's in-service audiograms from the ASA standard to ISO-ANSI units. Consequently, the opinion provided did not reconsider the converted results, as specifically requested in the Board's May 2017 remand directives. Thus, a remand is warranted in order to comply with the Board's May 2017 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the case to the same audiologist who examined the Veteran in June 2017 (or other pertinent specialist if that one is not available) for a supplementary opinion. Access to the electronic claims folder and a copy of this remand must be made available to the examiner. The examiner must be informed that in-service noise exposure is conceded. The examiner is requested to reconsider the Veteran's in-service audiograms after converting them from the ASA standards to ISO-ANSI units, and provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) any current hearing loss is related to service, including noise exposure therein. Specifically, the VA examiner must convert the in-service audiometric findings in April 1962, 1963, and 1965, from ASA standard to ISO-ANSI units AND indicate in the report that the conversions have been made and reconsidered. A complete rationale for the conclusion reached must be provided in the clinical report. A new VA examination should be scheduled if the examiner deems such an examination necessary to provide the requested addendum. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 3. After taking any further development deemed appropriate, re-adjudicate the claim. If a benefit is not granted, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. The Veteran 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs