Citation Nr: 20006236 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 12-07 955 DATE: January 24, 2020 ORDER Service connection for throat cancer is denied. FINDING OF FACT The Veteran’s throat cancer was not manifest during active service, and is not attributable to service. CONCLUSION OF LAW Throat cancer was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1969 to October 1976. He timely appealed this matter from an August 2009 rating decision. In March 2012, the Veteran requested a hearing before a Veterans Law Judge at the RO. Hearings were scheduled in September 2015, in January 2016, and in March 2016; each time the Veteran requested a postponement and rescheduling of the hearing because he was out of the country. In July 2016, the Board remanded this matter to afford the Veteran an opportunity for a hearing. In August 2016, the Veteran acknowledged receipt of notice of hearing scheduled for September 13, 2016; and indicated that he was out of country and did not know when he would return and be available for a hearing. He did not appear for the September 2016 hearing, and has not indicated his availability for rescheduling. His request for hearing is deemed withdrawn. 38 C.F.R. § 20.702(d). All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Here, there is neither evidence of pertinent disability in service, nor competent medical evidence suggesting a relationship between the Veteran’s current throat cancer and service. VA has no duty to provide further VA examination or obtain a medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as malignant tumors or tumors of the brain or spinal cord or peripheral nerves, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). VA records, dated in August 2009, show clear evidence of a hypermetabolic right base of tongue lesion consistent with malignancy; and a diagnosis of cystic squamous cell carcinoma of right neck. The Veteran completed treatment with radiation and chemotherapy in October 2009, followed by regular cancer surveillance. His service treatment records do not reflect any findings or complaints of throat cancer, nor is there evidence of trauma or injury to the Veteran’s mouth and throat. The Veteran had a tonsillectomy in childhood, with no complications and no sequela. He was treated for chest congestion and cough in service in October 1969; examination at that time revealed moderate inflammation of throat. He was again treated for sore throat in service in February 1972 and in September 1975. Clinical evaluation of mouth and throat at separation examination in October 1976 was normal. The Veteran has not since reported in the context of his claim that he experienced any throat disease, other than strep throat, in service. He has not associated throat cancer with any currently diagnosed and service-connected disability, and no medical professional has indicated even a possible link between the disabilities, despite repeated work-ups. In March 2010, the Veteran reported that he was stationed in Guam during active service, and contended that he was exposed to Agent Orange and to radiation from radio towers. In June 2010, VA received a response through the Personnel Information Exchange System (PIES) that DD Form 1141, Record of Exposure to Radiation, was not a matter of record; nor were there records of exposure to herbicides. The evidence of record fails to substantiate the Veteran’s contentions regarding exposure to radiation and exposure to herbicides in service. No objective evidence establishes the Veteran’s actual exposure to herbicides, including Agent Orange, during service in Guam. Moreover, as the type of radiation exposure claimed by the Veteran is not considered to be ionizing radiation, provisions relating to ionizing radiation are not applicable in this appeal. (Continued on the next page)   To date, the Veteran submitted no evidence or information linking active service to the currently diagnosed throat cancer. While he may fervently believe in such a connection, as a layperson the Veteran lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between service or a service-connected condition and throat cancer, entitlement to the benefit sought is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.