Citation Nr: 19128164 Decision Date: 04/11/19 Archive Date: 04/11/19 DOCKET NO. 17-59 115 DATE: April 11, 2019 ORDER Entitlement to service connection for trachea cancer, including as due to in-service exposure to burn pits, is granted. FINDINGS OF FACT 1. The Veteran’s service personnel records show that he served in combat in Iraq; thus, his in-service exposure to burn pits while in combat in Iraq is presumed. 2. The record evidence is in relative equipoise as to whether the Veteran’s in-service exposure to burn pits while in combat in Iraq caused his trachea cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for trachea cancer, including as due to in-service exposure to burn pits, have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 2003 to January 2004 and from June 2004 to May 2005, including in combat in Iraq. The Veteran appointed his current attorney to represent him by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in July 2017. The Board finds that the evidence reasonably supports granting the Veteran’s claim of service connection for trachea cancer, including as due to in-service exposure to burn pits. The record evidence is in relative equipoise as to whether there is an etiological link between the Veteran’s trachea cancer and his in-service exposure to burn pits while in combat in Iraq. In other words, the medical evidence both supports and goes against the Veteran’s claim. With respect to the assertion that the Veteran was exposed to burn pits in Iraq while on active service, his DD Form 214 shows that he served in Iraq from June 2004 to May 2005 and was awarded the Combat Action Ribbon (Operation Iraqi Freedom). Thus, the Board acknowledges that the Veteran likely was exposed to burn pits while in combat in Iraq. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). The Board next acknowledges that the Veteran has been diagnosed as having and treated for trachea cancer since his service separation. For example, a private pathology report of a tracheal mass in February 2017 was positive for adenoid cystic carcinoma (or trachea cancer). On private outpatient treatment with H. G., M.D., on March 3, 2017, it was noted that a computerized tomography (CT) scan of the Veteran’s trachea showed that his tracheal tumor was 4.6 centimeters (cm) in size and occupied the mid-trachea. Dr. H. G. reviewed surgical options with the Veteran and his wife, discussed the risks with them, and the Veteran consented to having surgery to remove his tracheal tumor. The Veteran had surgery to remove his tracheal tumor at a private hospital on March 10, 2017. The pre-operative and post-operative diagnoses were adenoid cystic carcinoma of the trachea. Dr. H. G. performed the surgery. On VA respiratory conditions DBQ in March 2017 completed by Dr. H. G., it was noted that the Veteran had tracheal resection reconstruction surgery to treat his malignant tumor of the trachea earlier that same month in March 2017. The Veteran was undergoing post-surgical radiation treatment with an anticipated completion date of July 2017. He had a left vocal cord injection scheduled for later in March 2017 due to the post-surgical residual of left vocal cord impairment. The Veteran would be unable to extend his neck for 2 3 months after surgery. He had tumor trachea, status-post resection, and vocal cord dysfunction. His vocal paralysis limited his ability to speak. “Future injections and/or surgery will be required to address [the Veteran’s] vocal cord paralysis.” The diagnosis was adenoid cystic carcinoma of the trachea. In a letter dated on March 17, 2017, and date-stamped as electronically received by VA on March 31, 2017, Dr. H. G. stated that he was a thoracic surgeon who began treating the Veteran earlier that same month in March 2017 when he presented “with an adenoid cystic carcinoma of the mid-trachea and underwent tracheal resection and reconstruction.” The Veteran reported to Dr. H. G. that he had been exposed to burn pits while in combat in Iraq. Dr. H. G. reviewed the Veteran’s medical records and examined him. This physician stated, “Since I personally removed the tumor in his windpipe and again took biopsies from the tumor immediately before resection of the windpipe, I confirm that [the Veteran] had a locally advanced adenoid cystic carcinoma.” Dr. H. G. also stated: Adenoid cystic carcinoma is a rare malignant tumor of the salivary glands. Even though this tumor is the second most common malignancy of the windpipe, the overall small number of cases in the United States and elsewhere has not, up to this point in time, allowed identification of its cause. While I am certain that, as for other malignant tumors, adenoid cystic carcinoma is caused or favored in incidence by environmental factors and while I suspect that inhalation of noxious fumes may contribute to this malignant tumor, these factors remain at present putative, that is unconfirmed. There is no evidence of which I am aware that explains a purely genetic origin of adenoid cystic carcinoma or one that would exclude environmental exposure as a cause….After consideration of the unusual individual exposure of [the Veteran] inside and immediately outside burn pits before, during, and after incineration to a wide variety of waste material, including but not limited to plastic and other organic compounds, combustion byproducts, and metals, I find it is more likely than not that [the Veteran’s] adenoid cystic carcinoma of the windpipe was caused by exposure to burn pits during his service in Iraq. On VA respiratory conditions DBQ in May 2017, the Veteran’s post-service tracheal cancer, surgical removal of the tumor, and post-surgical radiation therapy and vocal cord paralysis were noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. This examiner stated that the Veteran’s post-surgical residuals were tracheal resection/reconstruction “affecting voice and swallowing, treated with Botox injections with some improvement, plan for secondary surgery in August” 2017. This examiner also stated that the Veteran “would have difficulty with speech secondary to his vocal cord paralysis.” The VA examiner opined that it was less likely than not that the Veteran’s tracheal cancer is related to active service. The rationale for this opinion was that there was “insufficient medical evidence to link exposure to burn pits and the later development of tracheal cancer.” The rationale also was that there were “no strong genetic or environmental factors that have been identified to link exposure to burn pits and the later development of tracheal cancer based on the weight of the medical literature.” The diagnosis was adenoid cystic carcinoma (trachea cancer), status-post resection and reconstruction, with residual vocal cord dysfunction. The Veteran contends that his trachea cancer is related to active service, specifically as a result of in-service exposure to burn pits while in combat in Iraq. The medical evidence is in relative equipoise as to whether this disability is related to service. On the one hand, Dr. H. G., the Veteran’s thoracic surgeon, confirmed in March 2017 that the Veteran had been diagnosed as having trachea cancer which required surgical removal (performed by Dr. H. G. earlier that same month in March 2017), post-surgical radiation treatment, and resulted in vocal cord paralysis. Although Dr. H. G. acknowledged in his opinion that no specific cause for trachea cancer had been identified in the general population based on the small number of cases seen, he noted that environmental exposure could not be excluded as a cause. Critically, Dr. H. G. opined that, based on the Veteran’s “unusual individual exposure,” it was as likely as not that the Veteran’s in-service exposure to burn pits while in Iraq caused or contributed to his trachea cancer. On the other hand, the VA examiner subsequently opined in May 2017 that it was less likely than not that the Veteran’s in-service exposure to burn pits in Iraq caused or contributed to his trachea cancer. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the record evidence sufficiently supports finding that the Veteran’s trachea cancer is related to his in-service exposure to burn pits while in combat in Iraq. See 38 C.F.R. §§ 3.102, 3.303, 3.304. In summary, the Board finds that service connection for trachea cancer, including as due to in-service exposure to burn pits, is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel