Citation Nr: 21063780 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 14-10 782 DATE: October 15, 2021 ORDER Service connection for throat cancer is denied. Service connection for speech pathology problems is denied. FINDINGS OF FACT 1. The evidence shows that it is less likely than not (less than 50 percent probability) that the Veteran's throat cancer either began during or was otherwise caused by his military service, to include as a result of any in-service asbestos exposure. 2. The evidence fails to show that the Veteran was actually or presumptively exposed to herbicide agent during his military service. 3. The Veteran's speech pathology problems are result of his throat cancer, which is a non-service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for throat cancer have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for speech pathology problems have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1959 to July 1963. He is seeking service connection for throat cancer and speech pathology problems secondary to treatment of his throat cancer. A September 2016 Board decision denied service connection for throat cancer and speech pathology problems. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court vacated the 2016 Board decision and remanded the issues for further consideration consistent with a Joint Motion for Remand (JMR) which instructed the Board to obtain a medical opinion addressing the association between the Veteran's throat cancer and his exposure to asbestos during service. In September 2017, the Board obtained a VHA medical opinion. Since the Veteran did not waive the review of new evidence by the Agency of Original Jurisdiction (AOJ) at that time, a Board decision in April 2018 remanded the issues for AOJ review. In March 2019, the AOJ issued a Supplemental Statement of the Case (SSOC). Shortly after the September 2017 VHA opinion was obtained, more medical evidence was associated the file which suggested possible evidence of the Veteran's asbestos exposure during service as well as his smoking history. Accordingly, Board remanded the issues again in July 2019 to obtain a medical opinion to address the etiology the Veteran's throat cancer, to include discussion on the effect of asbestos exposure and his smoking history. In December 2019, a VA examination was conducted and a medical opinion was provided. Service Connection 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of a service connected disability. 38 C.F.R. § 3.310 (a). In addition, service connection can also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). Throat cancer The Veteran claims that his throat cancer was caused by his active service, to include exposure to herbicide agents and asbestos during service. Privat medical records show that the Veteran was dialoged with squamous cell carcinoma of hypopharynx and underwent total laryngectomy, partial pharyngectomy, bilateral neck dissection, left thyroid lobectomy, CP myotomy and reconstruction in April 2012. Respiratory cancer, to include larynx cancer is a disorder or decease listed under 38 C.F.R. § 3.309(e), which will be presumptively service connected if the Veteran was either actually or presumptively exposed to the herbicide agent during service. Herbicide exposure A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R.§ 3.309(e). "Service in the Republic of Vietnam" includes service on the actual landmass or on the inland waterways of the Republic of Vietnam, service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, as well as service within the 12 nautical mile territorial sea of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Blue Water Navy Vietnam Veterans Act of 2019. Public Law 116-23. The Veteran contends that he served on U.S.S. Bennington (CVA-20) and that the ship had been traveled close to the territory of the Republic of Vietnam during his service. In a statement dated September 2012, the Veteran said that he could see the land while on the ship. His co-service member provided a statement in September 2013 stating the U.S.S. Bennington (CVA-20) had been in an offshore location off Da Nang, Vietnam during its 1962 Pacific deployment. However, such an assertion is not supported by any deck logs, which as discussed below do not show that the Veteran's ship was in the territorial waters of Vietnam, while he was aboard. In his substantive appeal (Form 9) dated March 2014, the Veteran contended that he was on U.S.S. Bennington (CVA-20) when it carried herbicides to the Vietnam during its 1962 deployment. Military personnel records show that the Veteran served on U.S.S. Bennington (CVA-20) from June 1960 to March 1963. The AOJ conducted a research and determined in July 2013 that U.S.S. Bennington (CVA-20) was not in the official waters of Vietnam and the Veteran did not have in-country service in Vietnam. In June 2021, AOJ obtained logbooks of U.S.S. Bennington (CVA-20). A professional researcher completed a comprehensive research on the Veteran's claimed exposure that he was exposed to herbicides while aboard the U.S.S. Bennington (CVA-20) from June 1960 through July 1963. The Command History for the USS Bennington for 1960, 1961, 1962, and 1963 were reviewed and the researcher found no evidence to support the presence of the Bennington in the territorial waters of Vietnam. A map showing locations of U.S.S. Bennington (CVA-20) in the Pacific region from1961 to 1963 is associated with the file, but it does not show that the ship was ever located within the 12 nautical mile territorial sea of Vietnam during these three years. In July 2021, AOJ issued a memorandum concluding that Veteran's exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. With regard to the Veteran's claim that U.S.S. Bennington (CVA-20) carried herbicides to the Vietnam during its 1962 deployment, review of the 1962 logbook of U.S.S. Bennington (CVA-20) does not show such mission and does not show the ship was ever on route to Vietnam. Accordingly, the evidence is insufficient to show that the Veteran was actually or presumptively exposed to herbicide agent during his service. As such, service connection for throat cancer cannot be granted on a presumptive basis of herbicide exposure. Asbestos exposure The Veteran also contends that his throat cancer was a result of his exposure to asbestos during service. Military personnel records show that the Veteran's military specially (MOS) was manage controlman and fireman. He testified at his Board hearing in November 2015 that he was exposed to asbestos "all day long" while serving on U.S.S. Bennington (CVA-20) and described the areas in which the asbestos was located on the ship. For his MOS as a firefighter, VA recognized that the exposure to asbestos is "highly probable", as such asbestos exposure during service is conceded. A VHA opinion in September 2017 opined that the Veteran's throat cancer was less likely than not (less than 50 percent probability) the result of asbestus exposure during service. The expert indicated that the medical literature showed conflicting conclusions regarding the effect of asbestos exposure on the incidence of laryngeal cancer and that a causal link between asbestos exposure and laryngeal cancer had not been established. The expert also noted that the Veteran had a significant history of tobacco use (1.5 packs per day for 53 years), which was a confirmed risk factor for hypopharyngeal cancer. A private consultation in December 2017 found evidence of asbestosis shown by the November 2017 chest CT, and diagnosed the Veteran with obstructive lung disease as well as asbestos-related lung disease. VA examination in December 2019 diagnosed the Veteran with status post laryngectomy with tracheostomy for treatment of his malignant squamous carcinoma of the hypopharynx. The Veteran reported that he smoked roughly 1.5 packs per day for approximately 30 years, quitting approximately 10 years before, and that he consumed alcohol one to two drinks daily as an adult and stopped drinking more than 35 years before. After reviewing the claims file and conducting medical research, the examiner concluded that the Veteran's throat cancer was less likely than not (less than 50 percent probability) to have been the result of his military service, to include as a result of exposure to asbestos during service. The examiner provided the following rationale: While there is some available medical literature suggesting there is a relationship between asbestos exposure and pharyngeal cancer, there is no sufficient evidence to indicate causation. It is more likely than not that the Veteran's squamous cell carcinoma of the hypopharynx was caused by both his tobacco use and his alcohol use. "The major risk factors for squamous-cell cancers of the hypopharynx.... are tobacco and alcohol use. Ethanol is a promoter of the mutagenic effects of tobacco-derived substances and thereby contributes to the carcinogenic synergy seen with concurrent tobacco and alcohol use." Asbestos: Selected Cancers Institute of Medicine (US) Committee on Asbestos: Selected Health Effects. Washington (DC): National Academies Press (US); 2006. ISBN-10: 0-309-10169-7. In the post-remand brief dated September 2021, the Veteran's representative provided medical studies suggesting positive links between workplace exposure to asbestos and cancer of the larynx, and argued that the evidence was at lease in relative equipoise as to whether the Veteran's throat cancer was caused by his in- service asbestos exposure. The Board disagrees. While some medical literature suggests a positive link between hypopharyngeal cancer and asbestos exposure, the VHA medical opinion in September 2017 indicated that medical literature reached conflicting conclusions on this issue. Furthermore, the medical literature suggesting a positive link between hypopharyngeal cancer value does not consider an individual patient's specific medical conditions. For example, in the Veteran's case, he has a significant history of tobacco use, which is not addressed by the generalized medical literature. As such, this medical literature offers very limited probative value. Conversely, the December 2019 VA medical opinion was rendered after the examination of the Veteran, review of his entire medical records and review of the medical literature. The examiner acknowledged that some medical studies suggested a positive link between hypopharyngeal cancer and asbestos exposure, however, based on the specific medical records of this particular Veteran, the examiner concluded that his hypopharyngeal cancer was more likely contributed to his long history of smoking and alcosol use instead of exposure to asbestos. This opinion is supported by well-reasoned rationales. As such, it will be given great probative value. Accordingly, service connection for throat cancer is denied. Speech pathology problems VA treatment records in February 2013 show that the Veteran's speech was nonfunctional due to total laryngectomy (TL) for treatment of throat cancer in 2012. As such, it is clear that the Veteran's speech pathology problems are caused by his treatment of throat cancer, which is consistent with the Veteran's contentions. As this decision denied service connection for throat cancer, service connection for speech pathology problems is also denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, Associate 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.