Citation Nr: 21013881 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-35 778 DATE: March 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for gastroesophageal cancer, including as due to in-service asbestos exposure, is remanded. Entitlement to a temporary total disability rating based on the need for post-surgical convalescence following an October 2011 esophagogastrectomy is remanded. REASONS FOR REMAND The Veteran had a period of honorable active service from July 1961 to August 1965. Because the Veteran received a bad conduct discharge for a subsequent period of active service, this acts as a bar to receipt of VA benefits based on such service. This appeal has a long procedural history. A videoconference Board hearing was held in October 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In March 2019, the Board denied all of the Veteran’s currently appealed claims. The Veteran and VA’s Office of General Counsel appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in June 2020. The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in September 2020. 1. Entitlement to service connection for bilateral hearing loss and for tinnitus is remanded. The Veteran contends that he incurred bilateral hearing loss and tinnitus during active service, including as a result of in-service exposure to significant acoustic trauma while serving onboard a series of U.S. Navy aircraft carriers, to include U.S.S. FRANKLIN D. ROOSEVELT (CV-42). The Veteran’s service personnel records show that he was subjected to significant acoustic trauma when aircraft routinely took off and landed on this aircraft carrier. Thus, the Board concedes that the Veteran likely was exposed to significant acoustic trauma during active service. Both parties to the Joint Motion argued successfully to the Court that the Board erred in March 2019 by relying on an August 2013 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) as support for denying the Veteran’s service connection claims for bilateral hearing loss and tinnitus. A review of the record evidence shows that there is no other medical evidence addressing the contended nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The Board notes in this regard that it is bound by the Court’s Order granting the Joint Motion. Thus, the Board finds that, on remand, the AOJ should obtain opinions from an appropriate clinician concerning the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. 2. Entitlement to service connection for gastroesophageal cancer, including as due to in-service asbestos exposure, is remanded. The Veteran also contends that he incurred gastroesophageal cancer during active service, specifically as a result of in-service asbestos exposure while serving onboard U.S.S. FRANKLIN D. ROOSEVELT (CV-42), including while this ship was in a U.S. Navy shipyard for an extensive overhaul. His service personnel records confirm that he served onboard U.S.S. FRANKLIN D. ROOSEVELT (CV 42) from June 1963 to March 1965. Publicly available information provided by the Veteran in support of this claim shows that this ship was in a U.S. Navy shipyard for approximately 5½ months in 1963 for an overhaul. Thus, the Board concludes that the Veteran likely was exposed to asbestos while on active service. It is undisputed that the Veteran was diagnosed as having and treated for gastroesophageal cancer in the decades since his service separation. Both parties to the Joint Motion questioned whether the VA examiners who provided negative nexus opinions concerning the contended etiological relationship between gastroesophageal cancer and active service in October 2013 and in November 2017 had reviewed an “Asbestos Exposure and Cancer Risk Fact Sheet – National Cancer Institute” (NCI Fact Sheet) which discussed the possibility of asbestos exposure leading to the development of gastroesophageal cancer. The Board notes initially that the NCI Fact Sheet appears to be treatise evidence because it only discusses very generally medical research in to the possibility of asbestos exposure leading to the development of gastroesophageal cancer. The Board acknowledges that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). The NCI Fact Sheet was not accompanied by the opinion of any medical expert linking the Veteran’s gastroesophageal cancer to active service or his conceded in-service asbestos exposure. Thus, the NCI Fact Sheet, alone, is insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board next notes that the Veteran submitted the NCI Fact Sheet in support of his claim in January 2014. The Board is perplexed by the argument in the Joint Motion asserting that an October 2013 VA examiner could have reviewed the NCI Fact Sheet when it was submitted 3 months later. The Board also is not aware of any requirement that VA clinicians review medical treatise evidence submitted by a Veteran in support of his claim as both parties to the Joint Motion suggested in their argument to the Court. The Board further finds that, despite the apparent significance assigned to the NCI Fact Sheet by both parties to the Joint Motion, this treatise evidence is not cited or discussed in the private medical opinion subsequently submitted in support of the Veteran’s claim in January 2021. In summary, the clinical significance of the NCI Fact Sheet is not clear from a review of the record evidence and the Veteran’s arguments in support of granting his claim. Nevertheless, the Board again notes that it is bound by the Court’s Order granting the Joint Motion. Thus, the Board finds that, on remand, the AOJ should obtain an addendum opinion(s) from the VA clinician(s) who provided the medical nexus opinions dated in October 2013 and in November 2017 or another appropriate clinician concerning the contended etiological relationship between the Veteran’s gastroesophageal cancer and active service which includes a discussion of the clinical significance, if any, of the NCI Fact Sheet. 3. Entitlement to a temporary total disability rating based on the need for convalescence following an October 2011 esophagogastrectomy is remanded. The Veteran finally contends that he is entitled to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for post-surgical convalescence following an October 2011 esophagogastrectomy. He essentially contends that he had to undergo an esophagogastrectomy in October 2011 in order to treat his gastroesophageal cancer which he attributes to active service. He also contends that this surgery required post-surgical convalescence and entitles him to a temporary total disability rating for his period of convalescence. The Board notes that it is remanding the Veteran’s service connection claim for gastroesophageal cancer, including as due to in-service asbestos exposure (as discussed above). Because adjudication of the latter claim likely will impact adjudication of the temporary total disability rating claim, the Board finds that both of these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the temporary total disability rating claim must be deferred. The AOJ also should obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Forward the claims file to a clinician for opinions concerning the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The decision of whether the Veteran needs to report for VA examination is left to the discretion of the clinician assigned to provide these opinions. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss, if present, is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that tinnitus, if present, is related to active service. A rationale must be provided for any opinion(s) expressed. The clinician is advised that the Veteran likely was exposed to significant acoustic trauma during active service. 3. Forward the claims file to the clinician who provided a medical nexus opinion dated on October 26, 2013, concerning the Veteran’s gastroesophageal cancer and to the clinician who conducted the Veteran’s VA esophageal conditions Disability Benefits Questionnaire (DBQ) on November 24, 2017, if available, or another appropriate clinician for addendum opinions concerning the contended etiological relationship between the Veteran’s gastroesophageal cancer and active service. If either the October 2013 or November 2017 clinician is not available to provide an addendum opinion, please note this in the claims file. Please provide the clinician(s) with a copy of an “Asbestos Exposure and Cancer Risk Fact Sheet – National Cancer Institute” date-stamped as received by VA on January 17, 2014 and available at http://www.cancer.gov/cancertopics/factsheet/Risk/asbestos (NCI Fact Sheet) (last reviewed March 3, 2021). The clinician(s) providing the addendum opinion(s) is asked to review the NCI Fact Sheet and state whether this evidence changes their prior medical nexus opinion(s) concerning the contended etiological relationship between the Veteran’s gastroesophageal cancer and active service. A rationale must be provided for any opinion(s) expressed. (Continued on the next page)   4. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.