16-49 875
16-49 875
| Board of Vet. App. | Feb 23, 2018Background
- Veteran served on active duty in the USAF from Nov 1965 to Jul 1969, including duty in Peshawar, Pakistan (Nov 1968–May 1969).
- Veteran diagnosed post-service with cholangiocarcinoma; submits expert opinion (Mayo Clinic) attributing cancer to service-related exposure (liver flukes) in Pakistan.
- Veteran asserted tinnitus and bilateral hearing loss from in-service noise exposure (small arms training, flight line).
- Service treatment records and separation audiograms show no diagnosis of hearing loss or tinnitus during service; VA audiology in Dec 2015 found no tinnitus and attributed hearing findings to non-service causes.
- Board credited the Mayo Clinic opinion and granted service connection for cholangiocarcinoma; denied service connection for tinnitus (no current diagnosis) and for bilateral hearing loss (no nexus to service).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — cholangiocarcinoma | Exposure in Pakistan (where cholangiocarcinoma is more common) caused cancer; Mayo Clinic expert: "more likely than not" service-related | No contrary medical evidence; VA did not dispute in-service exposure but typically requires nexus evidence | Granted — Board found in-service exposure and probative expert nexus opinion establishing service connection |
| Service connection — tinnitus | Claimed tinnitus from in-service noise exposure | VA/RO: no diagnosis of tinnitus in records; VA examiner found no tinnitus | Denied — no current diagnosis, so claim fails on threshold basis |
| Service connection — bilateral hearing loss | Claimed hearing loss from in-service noise exposure | In-service and post-service audiograms negative; VA examiner found no nexus to service | Denied — preponderance shows hearing loss not present in service nor shown to be related to service |
| Application of reasonable doubt doctrine | Benefit-of-the-doubt should apply if evidence is balanced | Board: preponderance of evidence is against tinnitus and hearing claims, so reasonable doubt not applicable | Applied but not outcome-determinative — doctrine not invoked because evidence disfavors claimant |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (expert medical opinion considered in service-connection analysis)
- Colvin v. Derwinski, 1 Vet. App. 171 (VA must rely on independent competent medical evidence rather than its own unsubstantiated conclusions)
- Hensley v. Brown, 5 Vet. App. 155 (post-service audiometric evidence can establish service connection for hearing loss)
- Ledford v. Derwinski, 3 Vet. App. 87 (§3.385 does not require in-service audiometry to prove service connection)
- Degmetich v. Brown, 104 F.3d 1328 (no valid claim without proof of a present disability)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit-of-the-doubt rule when evidence is in approximate balance)