Citation Nr: 1806450 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-02 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for subglottic sarcoma status post hypopharnyngotomy (claimed as throat cancer). 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for subglottic sarcoma status post hypopharnyngotomy (claimed as throat cancer), a thoracolumbar spine injury, and bilateral hearing loss. In December 2011, the Board issued a decision granting service connection for bilateral hearing loss and remanding the remaining issues to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41. A Statement of the Case was issued in December 2011 and a Supplemental Statement of the Case was issued in April 2015. As the RO issued both a Statement of the Case and a Supplemental Statement of the Case for these issues, the Board concludes that there has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2017, the Veteran attended a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of his testimony is associated with the claims file. The issue of entitlement to service connection for subglottic sarcoma status post hypopharyngotomy (claimed as throat cancer) is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has degenerative disc disease (DDD). 2. The Veteran's current DDD did not manifest during service and was not caused by any in-service disease, injury, or event, and did not manifest to a compensable degree within a year of service separation. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). The VCAA duty to notify was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in September 2007, November 2007, and August 2009. These letters also informed the Veteran of the information and evidence that was required to substantiate his claims on both a presumptive and direct basis and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. No additional notice is required. VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records, records from the Social Security Administration (SSA), and providing an examination when needed to assist in deciding the claim. 38 U.S.C.§ 5103A; 38 C.F.R. § 3.159. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Service Connection for Back Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The presumptive service connection provision of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he is entitled to service connection for his current back disability and has argued that his current disability is related to his service. Specifically, he alleges that he fell approximately 20 feet from the tail of an aircraft during service and injured his back. The Veteran's Service Treatment Records (STRs) show treatment for a pulled muscle in February 1975, complaints of back pain in August 1974 after stepping off an aircraft, and a thoracic spine muscle strain in February 1976. The Veteran's separation examination in July 1977 show the Veteran's spine and musculoskeletal exam to be normal. The Veteran's post-service VA medical records and records from the Social Security Administration show that he was injured when he fell off of a ladder while at work in 1998 and suffered back pain ever since suffering that injury. The Veteran underwent a VA examination in September 2012. The VA examiner diagnosed the Veteran as having DDD. The examiner reviewed the Veteran's claims file and acknowledged the reports of acute back injury that occurred in service. The examiner reviewed an X-ray report performed in December 2008 which showed narrowing in the disc space. The examiner opined that the Veteran's current DDD was less likely than not related to the Veteran's service, and was likely the result of "typical degeneration over time since discharge." The Board also notes that there is no evidence that the Veteran was diagnosed with arthritis of the back within one year of his August 1977 separation from active service. Therefore, service connection pursuant to the chronic disease presumption for arthritis is not warranted. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). However, what remains for consideration, is whether the Veteran's back disability is otherwise related to his active service. As noted above, the evidence does not indicate a relationship between the Veteran's back disability and service. The only evidence suggestion such a relationship is the Veteran's own lay statement. In this regard, the Veteran is sincere in his belief that his back disability is related to his active service. The Board notes that lay persons such as the Veteran are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran has a back disability that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing back disabilities and opining regarding the etiology of such disabilities are issues that require the expertise of a medical professional, particularly where, as in this case, the Veteran suffered a post-service injury. Therefore, the Veteran is not competent to provide an opinion on those issues. While the Veteran can report symptoms that he experiences, he does not have the necessary training to make medical opinions. The Veteran has provided no competent medical evidence to support his assertion that his current back disability is related to his active service. In sum, the Board finds that the evidence does not show that the Veteran has a back disability that first manifested during active service or to a compensable degree within a year of service separation. Further, the Board finds that the Veteran's current back disability was incurred in, caused by, or related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a back disability and entitlement to service connection for inguinal hernia and the claims must be denied. 38 U.S.C.A. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability is denied. REMAND The Veteran suffers from for subglottic sarcoma status post hypopharnyngotomy (claimed as throat cancer) which he contends is either the result of exposure to asbestos during service or exposure to jet fumes and exhaust during service. With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA's Adjudication Procedure Manual contains provisions regarding claims for service connected based on exposure to asbestos. See M21-1.IV.ii.2.C.2.a-i and M21-1.IV.ii.1.I.3.a-f. These provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service as well as determine whether there is a relationship between any such asbestos exposure and the claimed disease. The Court of Appeals for Veterans' Claims has held the Board must discuss these provisions in assessing a claim to service connection for asbestos-related disease. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA's Adjudication Procedure Manual also provides that claims based on exposure to asbestos require a diagnosed disability that has been associated with in-service exposure and a medical nexus between asbestos exposure and the Veteran's disability. Due to the ambiguity in the VA examination, this case must be remanded in order to obtain clarification regarding whether the Veteran was exposed to asbestos in service and whether the Veteran's subglottic sarcoma is related to any verified in-service asbestos exposure. Accordingly, the case is REMANDED for the following actions: 1. First, the RO should conduct all development and take all actions necessary in accordance with the M21-1 to confirm whether the Veteran was exposed to asbestos during service. 2. Next, the RO should schedule the Veteran for a VA examination with a VA examiner to determine the nature and etiology of the Veteran's subglottic sarcoma. The examiner should review all pertinent evidence of record, conduct any tests deemed appropriate, and provide an opinion regarding whether it is at least as likely as not (50% degree of probability or higher) that the Veteran's subglottic sarcoma is related to service, to include exposure to asbestos or jet fumes in service. A complete rationale for all opinions is required. 3. Next, the RO should readjudicate the Veteran's claim for service connection for subglottic sarcoma. If the claim is not granted, the RO should issue a Statement of the Case and return the case to the Board for review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs