Citation Nr: 18146876 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-63 050 DATE: November 1, 2018 ORDER Entitlement to service connection for larynx cancer and residuals thereof is granted. Entitlement to service connection for an ulcer is denied REMANDED Issue of entitlement to service connection for bladder cancer and residuals thereof is remanded. Entitlement to service connection for a respiratory condition as secondary to larynx cancer and residuals thereof is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his larynx cancer and residuals thereof is at least as likely as not related to in service exposure to gasoline, napalm, and jet fuel fumes. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis for an ulcer. CONCLUSIONS OF LAW 1. The criteria for service connection for larynx cancer and residuals thereof are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for ulcer are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1952 to July 1956. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2016 rating decision issued by the Department of Veterans Affairs (VA). See May 2016 Notice of Disagreement (NOD); October 2017 Statement of the Case (SOC); November 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an August 2018 hearing. A transcript of the hearing is associated with the claims file. The Board acknowledges that the Veteran submitted as Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by the VA on April 13, 2018. However, the appeal had already been activated at the Board and is, therefore, no longer eligible for the RAMP program. Accordingly, the Board undertook appellate review of the case. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also 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 an initial matter, the Board acknowledges that the Veteran’s complete service records were not available for review. VA has made multiple requests for the information and was informed in December 2015 that the Veteran’s records are “fire related,” that no medical records were recovered, and all available personnel documents have been sent. See December 2015 VA Request for Information. Under these circumstances, additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2) and (3). Accordingly, the claim will be evaluated based on the evidence of record When, as here, these service records are lost or missing, through no fault of the Veteran, the VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, while indeed unfortunate, missing service records does not obviate the need for the Veteran to have medical nexus evidence supporting his claims. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). 1. Entitlement to service connection for larynx cancer and residuals thereof. During the August 2018 hearing, the Veteran testified that he was an armament specialist during service and his duties included preparing and loading Napalm mixed with gasoline into jet fighter bombers. The Veteran testified that he did not wear gloves, a face mask, or another protective garment while performing his duties. He testified that after the war was over, he became part of the Air Police. The Board does not dispute that the Veteran has a current disability of larynx cancer and residuals thereof. In particular, the evidence shows the Veteran underwent a total laryngectomy in September 2006 to remove a large tumor mass. September 2006 Private treatment records. The Board also finds the Veteran’s testimony of being exposed to Napalm, gasoline, and jet fuel fumes credible based on the available service personnel records, and the time, place, and circumstances of his service. See DD Form 214. Lastly, the Board finds that the evidence shows the Veteran’s larynx cancer and residuals thereof are at least as likely as not related to service. In doing so, the Board gives probative weight to the August 2018 VA treatment provider opinion by E.W., M.D. Dr. E.W. opines that there is some evidence linking laryngeal cancer to gasoline exposure and exhaust from trucks and jet fuel. Dr. E.W. also notes that the Veteran does not have substantial tobacco history and its absence makes his in service fume and exhaust exposure more causal. Dr. E.W. opines that, taken as a whole, it is more likely than not that the Veteran’s exposures during service resulted in his laryngeal cancer. According, the Board finds entitlement to service connection for the Veteran’s laryngeal cancer and residuals thereof warranted. 2. Entitlement to service connection for ulcer. Here, the question for the Board is whether the Veteran has a current disability of an ulcer. The Board finds that the evidence does not support a current ulcer disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). However, Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 110, 1131. Hence, where the evidence does not support a finding of a current disability of an ulcer upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran related that he was treated for ulcers due to stress while in service. August 2015 VA Form 21-0781. During the August 2018 hearing, the testified that while he did have ulcers in service, he is currently not diagnosed with ulcers and is doing well. The Veteran’s testimony is credible and consistent with the medical evidence, which shows no evidence of a current stress ulcer. A December 2014 VA treatment record shows the Veteran on medication for stress ulcer as a prophylaxis, but there was no diagnosis or treatment for an actual ulcer. The Board also notes that the Veteran was treated in 2014 for a “pressure ulcer,” or decubitus, and also known as a bed sore, which is not an ulcer caused pressure and not stress as being asserted by the Veteran. See Ulcer, pressure, Dorland’s Illustrated Medical Dictionary (31st ed. 2007). The Board also considered the Veteran’s complaints, but as noted above, the Veteran has no current complaints and asserts to being doing well with his ulcers, which would not amount to a disability that functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). Because the first element of service connection, i.e., a current disability, has not been met, service connection for an ulcer must be denied. REASONS FOR REMAND 1. Issue of entitlement to service connection for bladder cancer and residuals thereof. The Board cannot make a determination on the issue of service connection for bladder cancer and residuals thereof because no VA examiner has opined on whether there is a current bladder cancer and residuals thereof disability. While Dr. E.W. opined that the Veteran’s exposure to benzene from gasoline fumes during service is more likely than not causal to his bladder cancer, it is unclear from her opinion as to whether it is a current disability. August 2018 VA treatment provider opinion. The evidence indicates the Veteran’s urinary cancer of the bladder was removed in January 2013, and has been stabled and managed by regular cystotomy monitoring every six months. See April 2016 and May 2016 VA treatment records. However, the Board finds that clarification is needed by a medical professional on whether the nature and severity of his bladder cancer and residuals thereof. Particularly, whether it is a current disability. 2. Issue of entitlement to service connection for a respiratory condition as secondary to laryngeal cancer and residuals thereof. The Board cannot make a determination on the issue of service connection for a respiratory condition as secondary to laryngeal cancer and residuals thereof because no VA examiner has opined on whether the Veteran has a current respiratory disability and, if so, if it is proximately due to or aggravated by his service connected laryngeal cancer and residuals thereof. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his bladder cancer and residuals thereof, and for a respiratory condition, and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a private provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and cause of the asserted current Veteran’s bladder cancer and residuals thereof, if any. The medical professional should respond to the following: (a) Does the Veteran have a current disability of bladder cancer and residuals thereof (a disability that existed since around when he filed his August 2015 claim to the present, even if it resolved within that period)? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (b) If any bladder symptoms are deemed to be unrelated to his bladder cancer and residuals thereof, the examiner should, if possible, identify the cause considered more likely and explained why that is so. 3. Schedule the Veteran for an VA examination with an appropriate medical professional to determine the nature and cause of the Veteran’s asserted current respiratory disorder, if any. The medical professional(s) should respond to the following: (a) Does the Veteran have a current disability of a respiratory condition (that existed since around when he filed his August 2015 claim to the present, even if it resolved within that period)? (b) If so, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s current respiratory condition began in (or is otherwise related to) the Veteran’s military service? (c) If a current respiratory condition is found, the examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current respiratory disability is proximately due to or the result of his service connected disabilities, including laryngeal cancer and residuals thereof. If not, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current respiratory disability is aggravated (permanently made worse) by one or more service connected disabilities, to specifically include laryngeal cancer and residuals thereof. The examiner should consider the 2014 to 2016 VA treatment records that generally show no complaints or observations of respiratory problems, but his VA treatment providers noting in December 2014 that he had a tracheoesophageal puncture (TEP) leak despite multiple surgical interventions. The examiner should also consider the December 2015 VA treatment record showing the Veteran was seen for a productive cough with specks of blood, and assessed as either bronchitis or pneumonia. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. The examiner should specifically consider the Veteran’s August 2015 statement to his VA treatment providers that he still has a few respiratory problems, but manages the problem by staying indoors and using a saline solution to clear his airway. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (Continued on the next page)   (d) If a current respiratory condition is found and is deemed to be unrelated to service or one or more service connected disabilities, the examiner should, if possible, identify the cause considered more likely and explained why that is so. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel