Citation Nr: 1800391 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-22 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of throat cancer. REPRESENTATION Appellant represented by: North Carolina Division of Veteran Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1972, from February 1980 to August 1992, and on active duty for training in May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claim was remanded in September 2016 for further development. In October 2017 the appellant and his spouse testified before the undersigned. This appeal was processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. FINDING OF FACT It is at least as likely as not that the Veteran's residuals of throat cancer are the result of throat cancer that first developed during his active duty service. CONCLUSION OF LAW Residuals of throat cancer were incurred inservice. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Analysis The Veteran contends that service connection is warranted for throat cancer. He maintains that his throat cancer incurred in or was a result of his military service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Certain chronic disabilities, including malignant tumors, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has submitted a record showing that he was ordered to active duty for training on May 9, 1994 to be deployed to Germany on May 13, 1994. He has also submitted a treatment record dated May 10, 1994, which reflects that he sought treatment for voice changes that had persisted and progressively worsened for six months. The assessment was suspected throat cancer and the treatment record reflects that the Veteran was deemed "non-deployable," with surgery recommended in the following two to three weeks. A June 1994 biopsy report confirms that the Veteran was diagnosed with squamous cell carcinoma affecting his vocal cords and additional evidence shows that he subsequently underwent a laryngectomy, which resulted in him using a voice prosthesis since that time. See private medical records from Ear, Nose, and Throat Center of Conway; Newton Family Physicians. In November 2017, the Veteran's private oncologist, Dr. J.P., opined that it was at least as likely as not that the Veteran's throat cancer disability began one to two years prior to his diagnosis. Hence, if the Veteran's throat cancer began at the two year range offered by Dr. J.P. the disorder would be subject to presumptive service connection under 38 C.F.R. § 3.309(a) as a chronic disease. While a VA examiner opined in June 2017 that the Veteran's throat cancer was less likely than not incurred in or caused by his military service, the Board notes that the examination was conducted by a nurse practitioner. The Board also notes that the nurse practitioner's opinion rests primarily on the Veteran's many years of tobacco use, rather than the question asked in the Board's September 2016 remand, i.e., whether it was at least as likely as not that throat cancer was incurred while on active duty or any period of active duty for training. The Board finds the opinion of Dr. J.P. more credible as well as thorough, considering his expertise as an oncologist with a specialty in the diagnosis and treatment of cancer. The evidence raises a reasonable doubt as to whether the Veteran's throat cancer manifested to a compensable degree within one year of separation from active duty. While there is evidence against granting service connection for residuals of throat cancer, there is also evidence supporting such an award. There is no evidence clearly rebutting the presumptive theory. Therefore, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for residuals of throat cancer is in order. 38 U.S.C. §§ 1110, 5107; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). The claim is granted. ORDER Entitlement to service connection for residuals of throat cancer is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs