Veteranclaims’s Blog

August 7, 2021

Single Judge Application; “[e]ven though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.” Polovick v. Shinseki, 23 Vet.App. 48, 52–53 (2009); factors such as “whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner” may affect the analysis. Polovick, 23 Vet.App. at 53;

Filed under: Uncategorized — Tags: — veteranclaims @ 11:55 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4275
REUBEN D. HINOJOSA , APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Chief Judge: Self-represented veteran Reuben D. Hinojosa appeals a February
20, 2020, Board of Veterans’ Appeals (Board) decision denying service connection for colon
cancer and thyroid cancer. Record (R.) at 5-12. For the reasons that follow, the Court will set
aside the February 2020 Board decision and remand these matters for further development and
readjudication consistent with this decision.
I. FACTS
Mr. Hinojosa served on active duty in the U.S. Marine Corps from July 1985 to July 1989
and was stationed at Camp LeJeune from February 1986 to July 1989. R. at 67, 454.
In March 2016, Mr. Hinojosa filed a claim for service connection for colon and thyroid
cancers due to contaminated water at Camp LeJeune. R. at 414. December 2015 private treatment
records showed a diagnosis of sigmoid adenocarcinoma, R. at 419-20, and January 2016 private
treatment records included PET scan results revealing a thyroid nodule suspicious for follicular
neoplasm, R. at 450-51. In February 2016, the veteran underwent left hemicolectomy and right
thyroidlobectomy, R. at 392-95, and postoperative treatment notes indicated diagnoses of papillary
thyroid cancer and stage III colon cancer, R. at 402. Mr. Hinojosa had genetic testing performed
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in September 2016, which showed no genetic mutation that would be associated with hereditary
colon cancer. R. at 201-11.
In March 2017, the RO denied service connection. R. at 201-04. Mr. Hinojosa appealed,
arguing that having two types of cancer at the same time is rare and that genetic testing had ruled
out genetic markers known to be precursors for colon and thyroid cancers. R. at 175. After VA
in a January 2018 Statement of the Case continued the denial of his claims, R. at 139-58, he
perfected an appeal, R. at 136.
In April 2018, Dr. Timothy Ridolfi, Mr. Hinojosa’s surgeon, indicated that colon cancer
had advanced to stage IV with metastatic lung lesion. R. at 133. Dr. Ridolfi noted that Mr.
Hinojosa may have been exposed to known carcinogenic agents within the drinking water at Camp
LeJeune and that a link has been established between the carcinogens and multiple neoplastic
processes, including several cancers. Id. Dr. Ridolfi indicated that it is extremely rare for someone
to be diagnosed with multiple independent primary malignancies at the same time and that in such
cases either a predisposition to cancer or environmental exposure may be causative. Id. Because
Mr. Hinojosa’s genetic testing was completely normal, Dr. Ridolfi strongly believed that
consideration should be given to the contaminated drinking water at Camp LeJeune as the cause
of Mr. Hinojosa’s independent primary cancers. R. at 134.
In August 2019, a VA examiner reviewed relevant medical literature and found that
epidemiologic evidence indicated that it was less likely than not that contaminated drinking water
at Camp LeJeune caused either colon or thyroid cancer. R. at 67. The examiner reviewed Dr.
Ridolfi’s statement, but did not discuss his opinion. Id. The examiner stated that the most
significant risk factor for colon cancer is smoking and noted the veteran’s 25-year history of
smoking. Id. The examiner also noted family history as a major risk factor for both colon and
thyroid cancers, but did not acknowledge that Mr. Hinojosa did not have a family history of either
cancer. R. at 67-68.
In the February 2020 decision on appeal, the Board denied presumptive service connection
for both cancers, noting that colon and thyroid cancers are not among the diseases presumed to be
associated with exposure to contaminated drinking water at Camp LeJeune and that there was no
evidence of a malignant tumor in service. R. at 9, 10-11. As to direct service connection, the
Board reviewed Dr. Ridolfi’s opinion, found it speculative, and afforded it little probative value.
R. at 8-10. The Board found the August 2019 VA examiner’s opinion to be the most probative
3
evidence of record and relied on it to deny direct service connection for colon and thyroid cancers.
R. at 10. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Hinojosa’s appeal is timely and the Court has jurisdiction to review the February 2020
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Court reviews both the Board’s determination of whether the duty to assist has been
satisfied and the adequacy of a medical examination or opinion under the “clearly erroneous”
standard of review set forth in 38 U.S.C. § 7261(a)(4). See D’Aries v. Peake, 22 Vet.App. 97, 104
(2008); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). “A factual finding ‘is “clearly erroneous”
when although there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
With any finding on a material issue of fact and law presented on the record, the Board
must support its factual determinations with adequate reasons or bases that enable the claimant to
understand the precise basis for that determination and facilitate review in this Court. 38 U.S.C.
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze the credibility and probative value of evidence, account for evidence that
it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
III. ANALYSIS
Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86
(1992), Mr. Hinojosa argues that the Board failed to ensure that he received an adequate medical
examination. Appellant’s Informal Brief (Br.) at 3. He specifies that having two cancers at the
same time is rare, id., and together with the argument he made below in his Notice of
Disagreement, R. at 175, clearly asserts that genetic testing has ruled out genetic markers known
to be precursors for colon and thyroid cancers in his case. Mr. Hinojosa also urges the Court to
reverse the Board decision based on Dr. Ridolfi’s positive linkage opinion. Appellant’s Br. at 3.
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The Secretary responds that the August 2019 examiner conducted a thorough review of current
scientific and medical literature in reaching the stated conclusion and that the Board may favor the
opinion of one competent medical expert over that of another so long as it provides adequate
reasons or bases for its decision to do so. Secretary’s Br. at 9-10. He argues for affirmance of the
Board decision.
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). Veterans who were stationed at Camp
LeJeune between August 1, 1953, and December 31, 1987, are presumed to have been exposed to
the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and
vinyl chloride, which were in the on-base water-supply systems. 38 U.S.C. §§ 1116(a)(3), 1821;
38 C.F.R. § 3.307(a)(7) (2020). Certain listed medical conditions may be granted service
connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(f) (2020).
The availability of presumptive service connection does not, however, preclude a grant of
service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir.
1994); 38 C.F.R. § 3.303(d) (2020) (“The presumptive provisions of the statute and [VA]
regulations implementing them are intended as liberalizations applicable when the evidence would
not warrant service connection without their aid.”). Moreover, “[e]ven though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.” Polovick v. Shinseki, 23 Vet.App. 48, 52–53 (2009); accord Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (“The
availability of presumptive service connection for some conditions based on exposure to Agent
Orange does not preclude direct service connection for other conditions based on exposure to
Agent Orange.”). In such cases, factors such as “whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner” may
affect the analysis. Polovick, 23 Vet.App. at 53
.
When VA provides the claimant with a medical examination or obtains a medical opinion,
the Secretary must ensure that the examination or opinion is adequate. Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). A VA medical opinion is adequate “where it is based upon
5
consideration of the veteran’s prior medical history and examinations,” Stefl, 21 Vet.App. at 123,
“describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one’,” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical
question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105
(2012). See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report
must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical
question and facilitate the Board’s consideration and weighing of the report against any contrary
reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination
report must contain not only clear conclusions with supporting data, but also a reasoned medical
explanation connecting the two.”).
In this case, Mr. Hinojosa was stationed at Camp LeJeune during the relevant period and
is therefore presumed to have been exposed to contaminated drinking water there. R. at 67, 454.
Additionally, private treatment records show diagnoses of papillary thyroid cancer and stage III
colon cancer. R. at 402. However, the veteran has not been diagnosed with a disease presumed to
be associated with exposure to Camp LeJeune’s contaminated drinking water. R. at 402; see
38 C.F.R. 3.309(f).
The Court agrees with Mr. Hinojosa that the August 2019 VA examiner’s opinion is
inadequate. The examiner reviewed the medical literature and found that epidemiologic evidence
that Camp LeJeune’s contaminated drinking water causes colon or thyroid cancer was not in
equipoise. R. at 67. However, the mere citation to medical literature to support this finding does
not explain why Mr. Hinojosa’s colon and thyroid cancers are not due to his exposure to Camp
LeJeune’s contaminated drinking water. See Polovick, 23 Vet.App. at 52-53; Nieves-Rodriguez,
22 Vet.App. at 304 (“The Board must be able to conclude that a medical expert has applied medical
analysis to the significant facts of the particular case in order to reach the conclusion submitted in
the medical opinion.”).
To that end, although the examiner explained that smoking is the most significant risk
factor for colon cancer and noted the veteran’s 25-year history of smoking, the examiner did not
indicate whether this risk factor was related to thyroid cancer. Id. The examiner also noted family
history as a major risk factor for both colon and thyroid cancers, but failed to discuss Mr.
Hinojosa’s lack of family history for those cancers or the September 2016 genetic testing that
6
showed no genetic markers for those cancers. R. at 67-68. Although there is no reasons-or-bases
requirement imposed on examiners, see Acevedo, 25 Vet.App. at 293, the examiner in this case
was required to address the relevant risk factors and to explain the assessment and weighing of
any conflicting risk factors applicable to the veteran, see Polovick, 23 Vet.App. at 53. The
examiner’s failure to provide the necessary supporting rationale accounting for the particularities
of the veteran’s case in these claims for direct service connection rendered the opinion inadequate
for adjudication purposes. See Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293;
Nieves-Rodriguez, 22 Vet.App. at 301; Stefl, 21 Vet.App. at 123.
Therefore, the Court concludes that the Board clearly erred in relying on the August 2019
VA medical opinion to deny service connection for colon and thyroid cancers. See D’Aries,
22 Vet.App. at 104; Ardison, 6 Vet.App. at 407. Accordingly, remand is warranted to obtain a
medical opinion that adequately addresses the likelihood that Mr. Hinojosa’s exposure to
contaminated drinking water at Camp LeJeune caused his colon and thyroid cancers. See Barr,
21 Vet.App. at 311; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
The Board found Dr. Ridolfi’s linkage opinion speculative, and the Court cannot reverse
that finding given Dr. Rodolfi’s use of the speculative language “may be.” The use of certain words
that fail to convey whether there is “at least as likely as not” a link between a current disability and
an in-service injury or event might detract from the probative value of a linkage opinion. See, e.g.,
Polovick, 23 Vet.App. at 54 (finding that a doctor’s statement that a brain tumor “may well be”
connected to service was speculative); Bloom v. West, 12 Vet.App. 185, 187 (1999) (explaining
that use of the word “could,” without rationale or supporting data, is too speculative to support an
award of benefits); see also McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (noting that a
speculative medical opinion as to causation cannot establish medical nexus to service). Because
an adequate medical opinion is still required, remand, rather than reversal, is appropriate.
Because a new medical opinion is necessary, the Court need not address the comparative
probative weight assigned to Dr. Ridolfi’s April 2018 favorable medical opinion. On remand, Mr.
Hinojosa is free to submit that argument and any additional arguments and evidence in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board
must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529,
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534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination
of the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the February 20, 2020, Board decision denying
service connection for colon cancer and thyroid cancer is SET ASIDE and these matters are
REMANDED for further development and readjudication consistent with this decision.
DATED: April 30, 2021
Copies to:
Reuben D. Hinojosa
VA General Counsel (027)

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