Citation Nr: 21063607 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-48 119A DATE: October 14, 2021 ORDER Entitlement to service connection for throat cancer residuals is denied. FINDING OF FACT The Veteran's throat cancer was not caused by his active duty service. CONCLUSION OF LAW The criteria for service connection for the Veteran's throat cancer have not 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 in the United States Air Force from May 1979 to July 1987. In August 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to ensure the Veteran's private medical records were added to the claims file and for him to receive a VA examination for his throat cancer. The Veteran's private medical records were added to the file, and he received a VA examination in February 2020. However, in June 2020, the Board remanded the case again for the Veteran to receive a new VA examination that considered whether the Veteran's in-service jaw surgery and pink mucosa were related to his throat cancer. Additionally, the addendum opinion should consider whether the Veteran's possible in-service chemical exposure was related to his disability. In July 2020, an addendum opinion was submitted that considered the Veteran's in service treatments and chemical exposure. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2021); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2021). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's in-service records document his jaw surgery in April 1985 and pink mucosa in his throat in December 1985. His service records also documented his history of smoking; he smoked 1 and a half packs of cigarettes each day for 9 years. Additionally, he reported that he was exposed to various chemical during his in service maintenance job. He reported that he was often exposed to carcinogens without protective equipment. In February 2020, the Veteran received a VA examination. The examiner noted that the Veteran was diagnosed with throat cancer in 2011, and the cancer was currently in remission. The examiner determined that his throat cancer was not due to service because while he had jaw surgery in service, the onset of his throat cancer was 26 years after service. In its June 2020 remand, the Board found this examination to be inadequate, and therefore it will be afforded no probative weight. The Veteran received another VA examination in July 2020. The examiner was asked to address STRs from Apri l985, August 1985, and December 1985. The examiner noted that the Veteran had jaw alignment and tonsillectomy in service in April 1985, but neither procedure was done for suspicious lesions or malignancy. The examiner also addressed the Veteran's pink mucosa documented in August 1985 and December 1985, which he noted is "a normal finding that is to be expected," and that "there is nothing abnormal about pink mucosa." The examiner explained that the Veteran had jaw and throat deformities and normal histopathology after surgeries but no pre cancerous or cancerous lesions in throat or jaw lesions removed. Moreover, the examiner noted that the Veteran's throat cancer was an invasive squamous cell carcinoma. Therefore, the examiner determined that it was "medically impossible for him to have had this during service as he would never have survived for 30 plus years with this in his mouth." The examiner offered other etiologies for throat cancer such as genetics, tobacco use, and immune deficiency. Specifically, the examiner noted that the Veteran had "a very significant tobacco history which is the most likely cause of the tongue cancer." He also had history of melanoma with similar gene defect as cancer. Furthermore, the examiner considered the Veteran's lay statements connecting his in service chemical exposure. The examiner stated that there was no medically objective method of finding a correlation between the Veteran's cancer and his chemical exposure without complete speculation. Although the examiner mentioned speculation, this portion of the opinion is adequate because he explained why. He explained that there was no objective evidence in file and medical literature to link his throat cancer to chemicals such as paint thinners, zinc, lead, radar reflecting camouflage, and polyurethane. In considering the lay and medical evidence of record the Board finds that the preponderance of the evidence is against the claim. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, the specific issue in this case, determining a possible nexus relationship between the Veteran's throat cancer and active duty service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Determining the etiology of the Veteran's disability requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Therefore, while the Board considers the Veteran's lay statements that his throat cancer was caused by his exposure to chemicals in service, the probative value of his lay assertions is low. Conversely, the July 2020 opinion provided credible, competent evidence against the Veteran's claim. The examiner noted the length of time between his in-service surgeries and his throat cancer, as well as noting that those surgeries were not done because of suspicions of malignancy. Furthermore, the examiner noted that his throat cancer was most likely caused by his long history of smoking. Thus, as the preponderance of the probative evidence is against the Veteran's claim, service connection for the Veteran's throat cancer is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, Counsel 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.