Citation Nr: 21024723 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-35 293 DATE: April 26, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for residuals of colon cancer is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s right ear hearing loss is related to in-service noise exposure. 2. The Veteran’s colon cancer did not have its onset in service, did not manifest to a compensable degree within the first post-service year, and the disability is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for residuals of colon cancer are not met. 38 U.S.C. §§ 101, 1101 (3), 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to November 1973. He had additional service with the Air Force Reserve. These matters initially came before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision. In June 2019, the Board denied the claim of service connection for right ear hearing loss and remanded the issue of entitlement to service connection for residuals of colon cancer for further development. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court set aside the Board’s June 2019 decision, in part, and remanded to the Board the issue of entitlement to service connection for right ear hearing loss for readjudication in compliance with directives specified in a June 2020 Joint Motion filed by counsel for the Veteran and VA. In February 2021, the Board remanded these matters for further development. In the June 2019 and February 2021 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain the Veteran’s service personnel records, afford him a VA examination for his claimed residuals of colon cancer, and obtain a medical opinion as to whether his colon cancer and its residuals are related to service. Pursuant to the Board’s remand, the Veteran’s service personnel records were obtained and associated with the claim file, an appropriate VA examination was conducted in July 2020, and a medical opinion was most recently provided in March 2021 as to whether the Veteran’s claimed colon cancer and its residuals were related to service. As explained in more detail below, the Board finds the March 2021 opinion to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “Active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a) (e.g., malignant tumors). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Sensorineural hearing loss and malignant tumors are chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for right ear hearing loss Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has current right ear hearing loss which is related to noise exposure in service. The Board finds, for the following reasons, that the Veteran has current right ear hearing loss as defined by VA and that the evidence is at least evenly balanced as to whether this disability is related to service. An August 2015 audiological examination report from F. Tohm Au.D., CCC-A shows the Veteran experiences current right ear hearing loss as defined by VA. See 38 C.F.R. § 3.385. Therefore, current right ear hearing loss disability has been demonstrated. The Veteran has reported that he was exposed to loud noise in service associated with military weaponry, aircraft, and equipment. He is competent to report noise exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, his DD Form 214 indicates that his military occupational specialty was a weapons mechanic, there is nothing to explicitly contradict his reports, and they are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service noise exposure are credible and in-service acoustic trauma is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). As for whether the Veteran’s right ear hearing loss is caused by his in-service noise exposure, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In his August 2015 audiological examination report, Dr. Tohm explained that after reviewing the history provided by the Veteran, it could not be ruled out that his past history of acoustic trauma and exposure to hazardous noise while in the military were “contributing factors to his current hearing threshold levels . . . .” The audiologist who conducted a May 2016 VA audiological examination opined that the Veteran’s right ear hearing loss was likely (“at least as likely as not”/“50 percent probability or greater”) caused by or a result of service. The examiner reasoned that the Veteran’s hearing was within normal limits at the time of his entrance into service, with no separation audiometric data available. Thus, the presence of hearing loss or significant changes in hearing thresholds at separation from service could not be ruled out. The Veteran reported significant noise exposure working in aircraft ordnance in service. Therefore, it was likely (“at least as likely as not”) that the Veteran’s hearing loss was related to his duties while in service. In an August 2016 letter, audiologist M. Ward, MS FAAA explained that the Veteran was exposed to hazardous noise in service from firing ranges, M-16 rifles, F-4, F-15, F-105, and A-7 jet aircraft, engine runups, auxiliary power units, diesel and gasoline engines, MHU-83, MJ-1, and MJ-4 bomb lift systems, afterburners, and other aircraft noise. Dr. Ward opined that the Veteran’s right ear hearing loss was likely (“at least as likely as not”) related to his military experience as an aircraft ordnance systems mechanic. He reasoned that the Veteran’s exposure to hazardous noise from the sources noted above resulted in acoustic trauma, which results in progressive underlying neuropathology that has prolonged long-term consequences on the auditory process. The audiologist who conducted a February 2021 VA audiology examination opined that the Veteran’s right ear hearing loss was not likely (not “at least as likely as not”/“50 percent probability or greater”) caused by or a result of service. The examiner reasoned that there was no significant permanent shift in hearing thresholds beyond test variability from the time of the Veteran’s 1972 entrance into service until his separation from service in 1973. This was objective evidence of no permanent auditory damage on active duty from conceded noise. There were no reports of or treatment for hearing loss in the Veteran’s service treatment records or at the time of his separation from service. Although noise exposure was conceded and the relationship of noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise as a weapons mechanic and not another etiology. Overall, the evidence was against a nexus and it was not likely (“less likely than not”) that the Veteran’s right ear hearing loss was related to military noise exposure. The February 2021 audiologist explained in a separate February 2021 opinion that the Veteran’s hearing sensitivity was within normal limits bilaterally during his 1972 entrance examination and his 1973 separation examination. There was no clinically significant shift in hearing sensitivity noted at any tested frequency. There was no evidence in the record that the Veteran sustained noise injuries based on audiograms and there was no basis to conclude that his hearing loss was causally related to service. The Institute of Medicine (IOM) reported that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. The IOM stated that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, there was no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. Dr. Ward’s August 2016 opinion and the February 2021 opinions of the VA audiologist are based upon examinations of the Veteran, a review of his treatment records, and/or consideration of his reported history, and they are accompanied by rationales that are consistent with the evidence of record and the circumstances of the Veteran’s service. Thus, Dr. Ward’s August 2016 opinion and the February 2021 VA opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Dr. Tohm’s August 2015 opinion is of limited probative value because it is speculative. The opinion of the examiner who conducted the May 2016 VA examination is also of somewhat limited probative value because although the examiner reasoned that there was no audiometric data available at the time of the Veteran’s separation from service, the report of an October 1973 separation examination is included in the claims file and it includes the results of audiometry testing. Nevertheless, these opinions at least support the conclusion that the Veteran’s right ear hearing loss is related to noise exposure in service. In light of the above medical opinions, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s right ear hearing loss is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for residuals of colon cancer The Veteran contends that he has current residuals of colon cancer and that his cancer was caused by his exposure to various chemicals in service. The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that, while there is evidence that the Veteran has current residuals of colon cancer and that he was exposed to various toxic chemicals in service, the claimed colon cancer is not shown to have had its onset in service or within the first post-service year, or to be otherwise related to a disease or injury in service. Medical records, including the report of a July 2020 VA intestinal surgery examination, reveal that the Veteran underwent resection of the large intestine due to colon cancer in 1994, that he requires a colostomy, and that he continues to experience chronic diarrhea. Thus, current residuals of colon cancer have been demonstrated. The Veteran does not contend, and the evidence does not otherwise reflect, that his claimed gastrointestinal disability had its onset during his period of active service from August 1972 to November 1973, had its onset within the first post-service year following this period of service, or had its onset during any specific period of ACDUTRA or INACDUTRA. In this regard, there is no evidence of any complaints of or treatment for gastrointestinal problems documented in the Veteran’s service treatment records and his October 1973 separation examination and Reserve examinations dated in January 1982, December 1985, April 1990, and December 1993 do not reflect any gastrointestinal abnormalities. Rather, the Veteran contends, and his medical records reflect, that his colon cancer had its onset during his Reserve service in 1994. He contends that his cancer is related to his exposure to various toxic chemicals throughout service. With respect to the Veteran’s period of Reserve service following his November 1973 separation from active service, the Board points out that a claimant whose claim is based on a period of ACDUTRA or INACDUTRA can never be entitled to a “presumption of service connection” with respect to that period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Such a presumption is not possible in such circumstances because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. Id. Hence, presumptive service connection for the Veteran’s claimed gastrointestinal disability is not warranted under any circumstance (to include under the provisions pertaining to chronic diseases, such as malignant tumors) with respect to his period of Reserve service following his November 1973 separation from active service. Id. Rather, in order for service connection to be warranted on the basis of this period of service under the circumstances of this case, there must be direct evidence that the Veteran’s colon cancer was incurred during this period. The Veteran contends that his colon cancer is related to his exposure to various toxic chemicals throughout service, including PD-680 solvent, LP-4 fuel, LP-5 fuel, MEK thinner, and VV-L-800 benzene solvent. The Board notes that he has also reported a period of temporary duty (TDY) in Thailand, but he has not specifically reported any exposure to herbicide agents (including Agent Orange) during that or any other period in service, and the evidence does not otherwise reflect any herbicide agent exposure. In support of his contention, the Veteran submitted a January 2016 statement from fellow service member J.C.R. and a statement from fellow service member B.L.M. received in April 2016. These individuals confirmed that the Veteran was exposed to toxic chemicals in service, including JP-4 and JP-8 jet fuel, PD-680 and MED cleaning solvents, and VVL Lube 800. The Veteran is competent to report exposure to toxic chemicals in service. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1337. Moreover, there is nothing to explicitly contradict his reports, J.C.R. and B.L.M. have confirmed the Veteran’s exposure to such chemicals, and the Veteran’s reports are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service exposure to toxic chemicals are credible and such exposure is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a). As for whether the Veteran’s colon cancer and its residuals are related to his exposure to various toxic chemicals in service, the preponderance of the competent, probative opinions on whether there is such a relationship weigh against the claim. In a December 2015 letter, J.P. Rapacz, M.D. explained that upon “review of [the Veteran’s] record he has many years of exposure to numerous chemicals that are very concerning for their known carcinogenic properties.” The Veteran had provided a list of these chemicals and Dr. Rapacz opined that it was likely (“as likely as not”) that the Veteran’s colon cancer was “caused by frequent usage and contact with these chemicals.” There was no further explanation or rationale provided for this opinion. The physician who conducted the July 2020 VA examination opined that the Veteran’s claimed gastrointestinal disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. He reasoned that the Veteran’s medical records did not support that any currently diagnosed disability related to his colon cancer with residual diarrhea, gas, and colostomy was likely (“at least as likely as not”/“50 percent or greater probability”) incurred in or caused by service, to include exposure to chemicals in service, including PD-680 solvent, LP-4 fuel, JP-5 fuel, MEK thinner, and VV-1-800 benzene solvent, or possible exposure to the designated herbicide agents. There was no concrete evidence or studies showing exposure to such chemicals in service can serve as the causative agent in the Veteran’s colon cancer with residual diarrhea, gas, and colostomy, with resection of large intestine. In March 2021, a VA physician reviewed the Veteran’s claims file and opined that his claimed gastrointestinal disability was not likely (“less likely than not”/“less then 50 percent probability”) incurred in or caused by service. He reasoned that the Veteran’s exposures to PD-680 solvent, JP-4 fuel, JP-5 fuel, MEK thinner, and VV-L 800 benzene solvent and possible exposure to the designated herbicide agents are not known to cause colorectal cancer. A review of current, widely accepted, peer reviewed medical literature has not established any of these exposures as a cause of colon cancer. This includes Up to Date, a respected, professional medical resource. The letter from the Veteran’s former Reserve commanding officer was reviewed and acknowledged, but there was no evidence of the Veteran’s claimed disability arising in service or until its diagnosis in or around 1994, which was 21 years following his separation from active service. Therefore, it was not likely (“less likely than not”) that the Veteran’s colon cancer had its nexus in service or was due to events in service, including the specified chemical exposures. Dr. Rapacz’s December 2014 opinion and the July 2020 opinion are of little, if any, probative value because they are not accompanied by an specific explanation or rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, Dr. Rapacz did not specify which chemicals he believed were the cause of the Veteran’s colon cancer. The March 2021 opinion, by contrast, is based upon a review of medical literature and the Veteran’s treatment records and reported history, and is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the March 2021 opinion is adequate and entitled to substantial probative weight. See Id. Additionally, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran’s colon cancer and its residuals and service, to include chemical exposures) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4 (“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”). An opinion as to whether there is a link between the Veteran’s claimed gastrointestinal disability and his chemical exposures in service is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. Moreover, the Board has also considered the medical/scientific literature that has been submitted in this case. Medical article and treatise evidence may suffice to establish nexus in instances where “standing alone, [it] 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.” Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). The medical/scientific literature submitted in this case discusses the potential health effects of exposure to some of the chemicals identified by the Veteran, but the probative weight of this general material is outweighed by the specific, reasoned opinion of the physician who provided the March 2021 opinion, which considered all evidence of record along with the specific facts of the Veteran’s case. (CONTINUED ON NEXT PAGE) There is no other evidence of a relationship between the Veteran’s colon cancer and its residuals and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s colon cancer and its residuals had their onset during any period of active service, had their onset within the first post-service year following his November 1973 separation from service, or that they are otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for residuals of colon cancer is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.