Citation Nr: 1552324 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 12-31 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for squamous cell carcinoma of the right head and neck, including as due to asbestos and chemical exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1968 to August 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, denied service connection for squamous cell carcinoma of the right neck. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The Veteran testified from St. Petersburg, Florida, at an August 2015 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, D.C. The hearing transcript has been associated with the record. Since the issuance of the statement of the case (SOC), additional evidence has been received by the Board for which a waiver of initial RO consideration was provided, both in writing and verbally at the August 2015 Board hearing. 38 C.F.R. § 20.1304 (2015). FINDINGS OF FACT 1. The Veteran is currently diagnosed with squamous cell carcinoma of the right head and neck, status post modified radical neck dissection. 2. The Veteran was exposed to environmental chemicals during the regular course of his in-service administrative duties while stationed at Marine Corps Air Station El Toro in California. 3. The currently diagnosed squamous cell carcinoma of the right head and neck, along with any associated residuals, is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for squamous cell carcinoma of the right head and neck have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The United States Court of Appeals for Veterans Claims' (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The instant decision grants service connection for squamous cell carcinoma of the right head and neck, which is a complete grant of the benefits sought on appeal. As such, no further discussion of VA's duties to notify and to assist is necessary as to the issue on appeal. Service Connection for Squamous Cell Carcinoma Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Squamous cell carcinoma (as a malignant tumor) is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal, 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 claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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. Prejean v. West, 13 Vet. App. 444, 448-49 (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. 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). Throughout the course of this appeal, the Veteran has advanced that the diagnosed squamous cell carcinoma was caused by exposure to environmental chemical hazards and/or asbestos during service. At the outset, the Board notes that the Veteran has a current diagnosis of squamous cell carcinoma located on the right side of the neck and head. Specifically, the report from a VA general medical examination reflects that the Veteran was diagnosed with squamous cell carcinoma of the right head and neck, status post modified radical neck dissection. Further, VA treatment records reflect treatment for squamous cell carcinoma with metastasis to the right neck beginning in December 2008. Early in this appeal, the Veteran primarily discussed exposure to asbestos and other harmful chemicals while stationed aboard the USS Midway aircraft carrier and while stationed at the Hunters Point Naval Shipyard (Hunters Point); however, as the instant decision finds the Veteran was exposed to harmful chemicals while stationed at Marine Corps Air Station El Toro (El Toro), and that such exposure eventually led to the diagnosed squamous cell carcinoma, the Board need not specifically address whether the Veteran was exposed to asbestos or other harmful chemicals while stationed on the USS Midway or at Hunters Point. As noted above, the Board finds that the Veteran was exposed to environmental chemical hazards while stationed at El Toro in California. VA received a November 2012 news article discussing the possibility of chemical contamination at El Toro entitled "Dioxin, TCE Drums, U235 and El Toro's Panhandle." The article addressed how in 1999 El Toro was closed, at least in part, due to soil and ground contamination. Activities at the base, including the use of hydraulic fluids, were found to have generated harmful waste residues that seeped into the soil. There were also four landfills located on the base which burned solid waste, oil, paint residues, flammable fluids, jet fluid, industrial solvents, and aviation gasoline. VA also received a copy of the Agency for Toxic Substances and Disease Registry's Public Health Assessment for El Toro, which had last been updated in October 2009. The report noted that that the base was proposed for listing on the Environmental Protection Agency's (EPA) National Priorities List in 1989 because past operations and disposal practices had contaminated the local groundwater. El Toro was subsequently included on the list in 1990 when the chemical trichloroethylene (TCE) was found in irrigation wells. While the groundwater has since been cleaned up, the report notes that sources of exposure to the chemicals in the groundwater had included ingestion of contaminated groundwater, dermal contact with contaminated groundwater, and inhalation of aerosolized groundwater contaminants. The report goes on to list a number of suspected contaminants, along with noting the following contaminants which had previously been identified: carbon tetrachloride, chloroform, tetrachloroethylene, TCE, and dichloroethylene. At the August 2015 Board videoconference hearing, the Veteran credibly testified to performing administrative duties while working out of an airplane hangar. While working the night shift, the Veteran testified to noticing an increase in fumes. The fume exposure was worsened by the fact that the hanger had poor ventilation at night. The Veteran also testified about smoke from burning pits, and the Veteran's representative noted that the Veteran would have been drinking the base's groundwater, which, as discussed above, was contaminated with various harmful chemicals. The evidence of record is sufficient to find that the Veteran was exposed to harmful environmental chemicals while stationed at El Toro. After a review of all the evidence of record, lay and medical, the Board finds the evidence is at least in equipoise as to whether the Veteran's right neck and head squamous cell carcinoma, including associated residuals, is related to active service. Review of the Veteran's service treatment records reveal no complaint, diagnosis, and/or treatment for carcinoma in service. VA treatment records reflect that a right neck mass first appeared in mid-2008. The mass was subsequently diagnosed as squamous cell carcinoma in January 2009. As such, the right neck and head squamous cell carcinoma was not diagnosed until almost four decades had passed since service separation. VA treatment records from the time period immediately after diagnosis of the carcinoma reflect that it was of unknown etiology; however, a January 2009 VA treatment record did note the Veteran's past history of smoking and drinking. As discussed above, the Veteran received a VA general medical examination in July 2009. The VA examiner did not offer an opinion as to whether the Veteran's carcinoma was related to service. At the August 2015 Board videoconference hearing, the Veteran testified that no medical professional had opined as to origin of the carcinoma. VA subsequently received a nexus statement dated September 2015, from a physician specialized in radiation oncology. The examiner noted having reviewed the Veteran's treatment records since separation from service. It also appears that the examiner took an in-service history from the Veteran. After considering the medical evidence, the examiner opined that the most likely cause of the Veteran's carcinoma was exposure to contaminants in service. The report reflects that the examiner considered both the in-service environmental chemical/contaminant exposure and the Veteran's history of smoking. The examiner went on to state that the only thing preventing him from saying with 100 percent certainty that the environmental contaminant exposure was the cause of the carcinoma was the Veteran's prior smoking history; however, even considering the Veteran's past smoking, the examiner still found it to be a 51 percent or greater probability that the environmental contaminant exposure was the cause of the Veteran's carcinoma. The Board notes that the examiner stated that "contaminants at the naval shipyard" were the likely cause of the carcinoma, which would appear to refer to Hunters Point. There is no indication from the record that the examiner was versed in military installations. As such, the Board finds it likely that "navy shipyard" was intended to refer to environmental contaminant exposure at both Hunters Point and El Toro. Even if this were not the case, the evidence of record indicates that Hunters Point had also been contaminated by environmental chemicals, and that the Veteran was likely exposed to such contamination during service. The Veteran is currently diagnosed with squamous cell carcinoma of the right head and neck, with associated residuals, and he was exposed to environmental chemicals during the regular course of his in-service administrative duties while stationed at El Toro in California. A radiation oncologist, in a September 2015 opinion, opined that it was more likely than not that the in-service environmental contaminant/chemical exposure caused the Veteran's carcinoma and associated residuals. Resolving reasonable doubt in the Veteran's favor, the Board finds that squamous cell carcinoma of the right head and neck, with associated residuals, was incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER Service connection for squamous cell carcinoma of the right head and neck is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs