Citation Nr: 21063857 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-30 465 DATE: October 18, 2021 ISSUES Entitlement to service connection for bilateral hearing loss disability. Entitlement to service connection for rectal cancer. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for rectal cancer is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss disability is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1980 to August 1984. This case comes before the Board of Veterans' Appeals (the Board) from February 2016 and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. A transcript of that proceeding has been associated with the claims file. These matters were previously before the Board in January 2021. At that time the Board reopened the Veteran's claims for entitlement to service connection for bilateral hearing loss disability and for rectal cancer on the basis that new and material evidence had been received. The matters were subsequently remanded for further development. As it relates to the issue of service connection for rectal cancer, the Board finds that further evidentiary development is required before that issue on appeal can be adjudicated. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service, if they manifest within a specified time period following service. See 38 U.S.C. §§ 1101, 1112; 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339 ), or in the presumptive period 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 clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability due to acoustic trauma that he suffered as a result of his military occupational specialty as a Mortar man. The Veteran asserted in a December 2015 Statement in Support of his claim that he was exposed to hazardous noise under combat conditions during service and was not issued hearing protection. The Veteran claims that he began to experience chronic hearing loss during service and that his bilateral hearing loss disability has continuously caused limitations for him since discharge. As an initial matter, the Board recognizes that in the January 2021 decision, the Board has already conceded exposure to acoustic trauma as part of the Veteran's duties during active- duty service. As such, an in-service event has been shown. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Next, in looking to the evidence of record, the Board notes that the Veteran's service treatment records (STRs) show that in the Veteran's January 1983 Report of Medical History, normal auditory thresholds were recorded. The 1983 report also notes that the Veteran indicated that he did not know whether he had sustained hearing loss. In January 2016 the Veteran attended a VA examination for hearing loss where he was given an audiological examination. At that time the examiner diagnosed bilateral sensorineural hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. This examination, noted at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 15, 15, 20, 35, and 40 for the right ear, and 15, 15, 15, 35, and 40 for the left ear. His left ear was found to have 100 percent speech discrimination. The average decibel loss was 74 in the left ear. The right ear showed a speech discrimination of 100 percent. The average decibel loss was 28 in the right ear. The examiner opined that it was less likely than not that the Veteran's hearing loss was due to his active- duty service. In providing a rationale the examiner explained that all audiograms in the Veteran's STRs indicated normal hearing thresholds. The examiner cited the Institute of Medicine (IOM) report in which he concluded there was no scientific support for delayed onset noise-induced hearing loss. The Veteran testified during the February 2020 Board hearing that he began to experience hearing loss in service and that a doctor noticed that he had hearing loss. The Veteran acknowledged that this report of hearing loss during service does not show in his record, but he insisted that he did experience hearing loss during that time. The matter was remanded in January 2021 for the Veteran to be afforded a new audiological examination and the Board directed that the new examiner should consider the Veteran's lay statements as to the onset of his hearing loss when rendering an opinion. The Veteran was afforded the Board-directed VA examination in May 2021. At that time the examiner noted that she reviewed the claims file, including that evidence added to the claims file since the January 2016 VA examination. At that time the examiner diagnosed bilateral sensorineural hearing loss, although not for VA purposes in accordance with 38 C.F.R. § 3.385. This examination, noted at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 20, 20, 20, 20, and 30 for the right ear, and 10, 15, 10, 15, and 35 for the left ear. His left ear was found to have 100 percent speech discrimination. The average decibel loss was 19 in the left ear. The right ear showed a speech discrimination of 96 percent. The average decibel loss was 23 in the right ear. The examiner opined that it was more likely than not that the Veteran's hearing loss was due to his active- duty service. In providing a rationale the examiner explained that the Veteran's DD 214 indicated that his MOS was a Mortar man and this had a high probability of noise exposure, the Veteran said while serving in his MOS he was exposed to hazardous jet engine noises and weapon firing, and also because he had received the M-16 Rifle Expert Badge and Combat Action Ribbon. In weighing the evidence of record, the Board first considers whether the Veteran has a current hearing loss disability. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board notes and emphasizes the regulation's use of the conjunctive term "or," meaning that satisfaction of any one of the three possibilities is sufficient to meet the requirements of 38 C.F.R. § 3.385 in establishing hearing impairment. Furthermore, the Board notes that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Therefore, though the Board has considered the fact that although the May 2021 VA examination did not establish bilateral hearing loss considering disabling for VA purposes, the January 2016 VA examination did in fact establish bilateral hearing loss for VA purposes. Given the conflicting diagnoses, the evidence is at least evenly balanced at this point. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran; as such the requirement or a current disability of bilateral hearing loss is met. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Finally, as it relates to a nexus between the current disability and conceded in-service noise exposure, the Board turns to the medical opinions as well as the lay statements of record. The Board notes a mix of opinion but finds the January 2016 VA audiologist's opinion as to nexus to be of less probative weight than the March 2021 opinion because the examiner relied on the Veteran's normal hearing thresholds in his service treatment records when concluding that the Veteran's hearing loss was not related to service. To this extent the Board finds this opinion inadequate as the examiner failed to consider that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds here that the VA examiner's reliance on general statements from the IOM, an extensive medical study, to the particular facts of this Veteran's case is overly broad and not specific enough to provide any reasonable support of the VA examiner's opinion. The examiner failed to consider the Veteran's competent lay statements with regard to onset of hearing problems beginning while he was on active-duty service. To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. On the other hand, the positive nexus opinion rendered by the March 2021 VA audiologist specifically noted a review of the Veteran's service records and her conclusions referenced detail of the examination and the lay statements of the Veteran, and therefore is considered to be of strong probative value. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). As such, the Board affords the March 2021 VA opinion significant probative value. Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of exposure to excessive noise during service, and experiencing a hearing loss during, and since, service. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In conclusion, the record establishes the Veteran has current bilateral hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. Competent evidence of a current bilateral hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When there is an equipoise of evidence, as here, the Veteran prevails on his claim. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current hearing loss is related to his military service. As such, the Board finds a grant of service connection for a bilateral hearing loss disability is appropriate. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 1. Entitlement to service connection for rectal cancer is remanded. The Veteran contends that his rectal cancer was caused by exposure to contaminated water at Camp Lejeune during his active- duty service. When this matter was last before the Board, it was remanded for the Veteran to be afforded a new VA medical opinion to determine the etiology of his rectal disability. For the reasons explained below, the Board finds that this matter must be remanded again for a new VA examination and medical opinion. The Board first notes that the record contains an October 2019 VA examination and opinion in which the examiner rendered a negative nexus opinion relying on the fact that the Veteran's STRs were silent with regards to any complaints or treatment for a rectal disability during service. The Veteran then submitted a private opinion from Dr. L.B.R. in October 2020 with regards to his claim for service connection. The Veteran's private physician however appeared to indicate that the Veteran's cancer of the colon or large bowel was included as a presumptive condition for exposure to drinking water at Camp Lejeune, which it was not. The record at the time was not clear whether the Veteran had a diagnosis of colon cancer. The Veteran has also submitted literature and correspondence in June 2019 and February 2020 regarding a possible relationship between his claimed disability and his in-service exposure to contaminated water at Camp Lejeune. In a January 2021 decision/remand the Board found that the Veteran's service treatment records confirm service of at least 30 days at Camp Lejeune during the applicable time period, and at that time the Board conceded exposure to contaminated drinking water. However, as explained in the January 2021 decision/remand, rectal cancer is not among the diseases identified in 38 C.F.R. § 3.309 (f) as being associated with exposure to contaminated water at Camp Lejeune, and therefore the Board explained that the Veteran is not entitled to that presumption of service connection. The Board however explained that the Veteran would not be precluded from establishing service connection for rectal cancer through other theories of entitlement, including through proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board remanded the matter in order for an addendum medical opinion with regards to the nature and etiology of the Veteran's rectal disability. Amongst its remand directives the Board asked that the examiner "review and comment" on the private nexus opinion from Dr. L.B.R. The Veteran was afforded the Board directed VA examination in April 2021. At that time the examiner rendered a negative nexus opinion. Part of the explanation for the opinion was that the Veteran had a genetic risk factor for rectal cancer and that his father died of colorectal cancer at age 75. In providing a rationale, however, the examiner failed to comment on the October 2020 private nexus opinion, as specifically directed by the Board. As such, the development actions requested in the Board's January 2021 remand were not substantially completed. A Board remand confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the additional development specified in the Board's prior remand must be substantially completed prior to adjudication. Finally, the Board also recognizes correspondence received by the Veteran in June 2021. In that letter the Veteran disagreed with the findings of the most recent VA examination stating that his father died of prostate cancer, not colorectal cancer, and that he had no family history of colon or colorectal cancer. A review of the Veteran's VA and private treatment records does in fact reflect although the Veteran is documented as having a family history of colon cancer, the records also reflect that the Veteran reported multiple times in his medical history that his father died of prostate cancer. Therefore, the April 2021 VA opinion was not based on factually accurate reasoning. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For these reasons, the Board finds that the matter should be remanded to afford the Veteran a new VA examination to address the nature and etiology of his rectal disability. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records and any relevant outstanding private treatment records and associate them with the electronic claims file. 2. Schedule the Veteran for a new VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's rectal cancer. If necessary, the examiner is asked to solicit information as to the Veteran's family history of colon and/or colorectal cancer. The VA physician must review the entire claims file including a copy of this remand. All indicated tests and studies should be completed. After thorough review of the claims file, the VA examiner should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's rectal cancer was incurred in service or is the result of any incident in service, to specifically include his presumed exposure to contaminated water at Camp Lejeune? Note: For purposes of this examination, the examiner must review and comment on the October 2020 private nexus opinion from Dr. L.B.R. (Document type, Medical Treatment record, Receipt date, October 1, 2020 with respect to diagnosis (colon-rectal cancer). 3. The examiner is also invited to review the following literature and correspondence submitted by the Veteran with regards to this claim: Camp Lejeune Health Studies (Document type, Correspondence, Receipt date, June 21, 2019); See also Correspondence, Department of Navy (Document type, Correspondence, Receipt Date, February 6, 2020.) Please note review of this literature and Correspondence. A complete rationale should be provided for all opinions and conclusions expressed. Citation to appropriate medical principles or treatises would be helpful to the Board's review. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.