Citation Nr: 21001266 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-31 003 DATE: January 7, 2021 ORDER Entitlement to service connection for esophageal cancer is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his esophageal cancer is at least as likely as not related to exposure of second-hand smoke in service. CONCLUSION OF LAW The criteria for entitlement to service connection for esophageal cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1973 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing was unavailable because the recording was inaudible. The Veteran was notified of this status and was given the opportunity to elect to have another hearing in a July 2020 notification letter. The Veteran submitted an August 2020 letter stating that he did not wish to have another hearing. Therefore, the Board will adjudicate the claim with the evidence available in the record. Entitlement to service connection for esophageal cancer The Veteran contends that he is entitled to service connection for esophageal cancer, because he was exposed to second-hand smoke while in service. The Veteran submitted an August 2012 lay statement from a fellow service member, T.W., in support of his claim. T.W. wrote that he was onboard the U.S.S. Haddo from August 1975 to April 1978. The Veteran and himself were always non-smokers. The atmosphere of the U.S.S. Haddo was contaminated with cigarette and cigar smoke in the port and underway. The atmospheric control system was inadequate in the ability to remove the carcinogenic contaminant. There wasn’t any place on the submarine where a person could escape the smoke. In an August 2013 Notice of Disagreement, the Veteran wrote that neither he nor his family were smokers at any time. He didn’t have a family history of smoking either. He worked as a laboratory technician after service in which he wasn’t allowed to smoke at any time. He was exposed to second-hand smoke while being submerged in a submarine for 250 days while in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Medical evidence included in the record show the Veteran was diagnosed with esophageal cancer in 2012. See e.g., Jun 2012 private post-operative record; September 2012 private treatment record. Service treatment records and military personnel records support the Veteran’s narrative of being expose to second-hand smoke while in service. The Veteran submitted a private medical opinion dated July 2012 from. Dr. K. In the medical opinion, the doctor wrote that the Veteran was currently under his care. He also wrote that there is a direct correlation between smoke exposure and esophageal cancer. The doctor opined that the Veteran’s cancer was more likely than not due to second-hand smoke exposure for an extended period of time in service. The Veteran also submitted a July 2019 private medical opinion from Dr. P. In the opinion, the doctor wrote that he reviewed the Veteran’s service treatment records and private medical records and the Veteran’s lay statements. He opined that the Veteran’s cancer was more likely than not a result of his involuntary exposure to second-hand smoke 24 hours a day, 250 days a year submerged on patrol. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s esophageal cancer is related to his military service. The Veteran has a current diagnosis of esophageal cancer, service treatment records support his contentions, and the private medical opinions found a positive nexus between the Veteran’s cancer and his service. In addition, the Board finds that the Veteran’s testimony to be credible as to the etiology of his disability. For these reasons, and resolving reasonable doubt in the appellant’s favor, the Board finds that the entitlement to service connection for esophageal cancer is granted. 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.