Citation Nr: 18153781 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-53 189 DATE: November 28, 2018 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for tonsillar cancer, diagnosed as stage IVa squamous cell of the right tonsil with cervical lymph node involvement and residuals, to include as due to asbestos exposure is remanded. FINDING OF FACT The Veteran’s low back disability, best diagnosed as lumbar spondylosis with disc bulging, first manifested greater than one year after active service and is not caused or aggravated by any aspect of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is a Vietnam War Era Veteran who served on active duty for training as a seaman in the Coast Guard from September 1972 to June 1973 and on active duty from April 1974 to February 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for service connection for a low back condition, sinus condition, and lymphoma of the neck stage 4. The Board notes that the Veteran perfected an appeal for service connection for the low back condition and lymphoma of the neck in September 2016. The appeal for the sinus condition was not perfected and for that reason is not currently before the Board. The issue was previously listed as entitlement to service connection for lymphoma of the neck stage 4. However, based upon the diagnosis identified by the VA physician in April 2008, the issue has been amended as listed above. Since the most recent supplemental statement of the case (SSOC), issued in October 2016, the agency of original jurisdiction (AOJ) has associated a number of records with the Veteran’s claims file. These records are not pertinent to the claims for a service connection for a low back disability or service connection for tonsillar cancer, diagnosed as stage IVa squamous cell of the right tonsil with cervical lymph node involvement and residuals, to include as due to asbestos exposure and residuals. Thus, the Board may proceed to adjudicate these claims without a waiver of review by the AOJ. See 38 C.F.R. § 20.1304 (2017). Duty to Notify and Assist Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. Service Connection Generally, to establish service connection 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (2017). Lay testimony is competent, however, to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) The Veteran contends that his low back disorder is the result of an injury during his active service. In a November 2010 claim, the Veteran reported that he injured his lower back in October 1976. As this is after discharge from active duty, it is likely an incorrect date. In a September 2016 substantive appeal, the Veteran noted that he injured his lumbar spine “in or around 1973 while in the Coast Guard serving in Maryland” and that he received treatment at that time. He did not report the circumstances or nature of the injury. Service treatment records for the Veteran’s first period of service on active duty for training are of record. Although the records show outpatient treatment for several unrelated symptoms and illnesses, there is no entry for treatment for a low back injury. In a June 1973 examination at the time of release from active duty, the examiner noted no spinal abnormalities The Veteran sought VA primary care and was assessed in January 2004. He reported incurring a herniated disc in the lumbar area in 2002 and was treated with injections but had no further problems. However, in February 2009, the Veteran continued to report low back pain and imaging studies show broad-based disc bulging and mild central canal stenosis at L4/5and L5/S1. An evaluator diagnosed mild lumbar spondylosis with paracentral disc protrusions. The Board finds that service connection for a low back disability, best diagnosed as lumbar spondylosis with disc bulging is not warranted because the disease and possible residuals of an injury first manifested greater than one year after active duty and is not caused or aggravated by any aspect of active duty. Although the Veteran reported an unspecified injury in 1973, records of care during this period are silent for any treatment for a back injury and no abnormalities were noted on a June 1973 examination at the time of release from active duty. Further, the Veteran reported to clinicians in 2004 that he had experienced ruptured discs two years earlier in 2002, many years after service. The Veteran has not been provided a VA examination, but the criteria to provide an examination and opinion are not met because there is no credible evidence of record that shows that a disease or low back injury occurred during service or a low back condition manifesting within one year of separation of service. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). REASONS FOR REMAND Entitlement to service connection for tonsillar cancer, diagnosed as stage IVa squamous cell of the right tonsil with cervical lymph node involvement and residuals, to include as due to asbestos exposure is remanded. The Veteran is claiming entitlement to service connection for what he describes as neck lymphoma. He has contended that this disorder resulted from exposure to asbestos and lead paint while “working on the Coast Guard Cutter Unimac in drydock in 1972 in Curtis Bay, Maryland” and later while working on “the Buoy Tender Sagebrush.” The Veteran’s military service records note that he served on the Coast Guard Cutter (CGC) Unimak from November 1972 to June 1973 and on the CGC Sagebrush from June 1974 to November 1974. The records are silent as to whether the Unimak was at drydock for repairs during that time. The records are also silent as to the type of work the Veteran performed while serving on those ships. The Veteran’s Coast Guard rating was seaman, an occupation that does not require the removal, handling, and replacement of asbestos insulation or other types of friable asbestos fibers. Nevertheless, in a shipyard environment, it is possible that a general seaman be assigned security or fire watch duties in the vicinity of others who performed the asbestos work. The Veteran’s service treatment records reflect that in October 1972, the Veteran reported “a sore throat, productive cough with greenish and yellowish composition”, with the examiner noted that the Veteran’s throat was “erythimous” [sic] and “lymph nodes slight edema.” It is also noted that on March 25, 1973 he reported a sore throat, with throat inflammation and no infection. The Veteran returned on March 26, 1973 where it was noted that he had an upper respiratory infection. On March 27, 1973, the Veteran reported congestion and cough. The examiner noted a “throat infection with exudate” and “tonsils enlarged, nodes slightly enlarged”. The Veteran was diagnosed with tonsillitis. The Veteran was seen again on March 29, 1973 for tonsillitis. On March 30, 1973, the examiner noted that the Veteran was suffering from “pharyngitis since 3/26” and noted that the Veteran’s pharynx was red, “slow increase tonsils without pus” and “neck supple with increase and cervical nodes [sic].” The Veteran’s military treatment records reflect that he was hospitalized from August 7, 1975 to September 3, 1975 at the U.S. Naval Hospital, Roosevelt Roads, Puerto Rico. To date, these records have not been located. Without the history of the Unimak, to include drydock repairs or the service records showing the Veteran’s occupation while aboard the Sagebrush, the Board is unable to make a fully informed decision regarding the Veteran’s exposure to asbestos and/or lead paint. The Veteran’s post-service treatment records reflect that in January 2004, the Veteran reported being a nonsmoker. In April 2008, the VA conducted a surgical pathology study. It was discovered that the Veteran’s right tonsil contained moderately differentiated squamous cell carcinoma with papillary (exophytic) features. The Veteran’s right side of his neck contained a mass which showed cellular evidence of squamous cell carcinoma. In a May 2008 VA general surgery outpatient consult, the surgeon noted that the Veteran was a patient with a “history of tonsillary cancer requiring chemotherapy” and “the patient is a newly diagnosed stage Iva squamous cell cancer of the right tonsil with cervical lymph node involvement.” It was also noted, “there is a palpable lymphadenopathy” in the Veteran’s right neck. In a May 2008 VA pre-anesthesia assessment note, it was indicated that veteran had a pre-op diagnosis of “Tonsillar squamous cell ca.” In the same May 2008 assessment, in the review of systems, it was noted that the Veteran had “cancer throat, tonsils, and lymph nodes” and prior difficult airway due to “cancer of tonsils and lymph nodes.” In an April 2009 VA Pain Clinic Consult, it was noted that the Veteran had “lymphoma which was diagnosed and treated last year with right neck dissection/resection and chemo/radiation. Pt. currently in remission per his reports.” In a November 2013 VA Hematology/Oncology note, the provider noted that the Veteran was there for a “followup for his SCAA of the oropharynx diagnosed in 4/2008.” A November 2013 CT neck soft tissue with contrast showed pharyngeal mucosal post radiation edema without mass or abnormal enhancement” and “no cervical masses or lymphadenopathy.” The Veteran was afforded a VA examination in September 2016. A VA physician noted that the “VA records lack evidence of a diagnosis of Lymphoma of the neck or any other anatomical part” and “It should be noted that lymphoma stage 4 represents widespread tumor dissemination above and below the diaphragm as well as to other organs. There is not clinical evidence available in VBMS or the available medical records that this Veteran suffers from a lymphoma or that he suffers from stage 4 cancer of any kind.” The physician rendered the opinion it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because “There is not evidence in the medical literature establishing a direct cause and effect relationship between asbestos exposure and the development of lymphoma of any kind.” Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the September 2016 negative nexus opinion to be inadequate for three reasons. First, the examination was based on the inaccurate belief that the Veteran had to have a current diagnosis of stage four cancer. Second, the VA examiner never addressed the April 2008, May 2008, April 2009, and November 2013 VA assessments that described the Veteran’s diagnosis as “stage IVa squamous cell cancer of the right tonsil with cervical lymph node involvement”, “cancer throat, tonsils, and lymph nodes”, “lymphoma”, and “SCAA of the oropharynx” which conflicted with his assertion that the “VA records lack evidence of a diagnosis of Lymphoma of the neck or any other anatomical part.” Third, the VA examiner failed to address the cause and effect relationship between asbestos exposure and the development of stage IVa squamous cell cancer of the right tonsil with cervical lymph node involvement or SCAA of the oropharynx. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The requirements to secure a VA examination are a low bar. A medical opinion is needed to allow the Board to make a fully-informed decision. Therefore, a remand is necessary. The matter is REMANDED for the following action: 1. Attempt to obtain the CGC Unimak deck log to identify whether the ship was at a shipyard September 1972 to June 1973. Attempt to obtain the Veteran’s Coast Guard Unit’s Command Operations Report (COR) in order to verify events claimed by the Veteran while he was assigned to the CGC Unimak from September 1972 to June 1973. and CGC Sagebrush from June 1974 to November 1974. 2. Since U.S. Naval Forces of Southern Command was relocated from Naval Station Roosevelt Roads, Puerto Rico to Naval Station Mayport, Florida, attempt to obtain Veteran’s in-service medical records for 1974 to 1976 in order to determine the nature of the Veterans’ hospitalization at the U.S. Naval Hospital, Roosevelt Roads, Puerto Rico from August 7, 1975 to September 3, 1975 from the U.S. Naval Forces Southern Command, Naval Station Mayport, Florida. 3. Obtain an addendum opinion from an appropriate clinician, regarding whether the Veteran’s tonsillar cancer, diagnosed as stage IVa squamous cell of the right tonsil with cervical lymph node involvement and residuals, is at least as likely as not caused by the Veteran’s contended exposure to asbestos during active duty for training and during active duty. 4. After completing the above actions, readjudicate the claim on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate SSOC and be provided an opportunity to respond. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel