Citation Nr: 21077453 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-14 539 DATE: December 29, 2021 ORDER Entitlement to service connection for bladder cancer is denied. Entitlement to service connection for throat cancer is denied. FINDINGS OF FACT 1. The Veteran's bladder cancer was not shown as chronic in service; did not manifest to a compensable degree within the applicable presumptive period; and is not otherwise etiologically related to active service, to include as due to exposure to toxic fumes therein. 2. The Veteran's throat cancer was not shown as chronic in service; did not manifest to a compensable degree within the applicable presumptive period; and is not otherwise etiologically related to active service, to include as due to exposure to toxic fumes therein. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bladder cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38C.F.R. §§3.303, 3.307, 3.309 (2020). 2. The criteria for establishing entitlement to service connection for throat cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Army from August 1956 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been previously before the Board on multiple occasions, to include most recently in January 2021. At that time, the above referenced claims were remanded to obtain an adequate VA medical opinion. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has 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 duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). For certain chronic diseases (e.g., a malignant tumor such as throat cancer), service connection can be presumed without showing evidence of such disease having been incurred during a period of service, if the disease has manifested to a degree of ten percent or more within one year from the date of separation. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303 (b). In service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for bladder cancer The Veteran asserts that his bladder cancer is causally related to active service, to include as due to exposure to exhaust fumes while performing his duties as a field engineer. As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran's claim, the threshold inquiry for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed bladder cancer, the preponderance of the evidence weighs against finding that the condition had its onset during; or are otherwise causally related to exposure to toxic fumes therein. A complete copy of the Veteran's service treatment records was unavailable for review. A records search reviewed that they were lost destroyed in a fire. According to military personnel records, his official military occupation was listed as a combat engineer and construction equipment operator. Post-service treatment records indicated that the Veteran was diagnosed with invasive urothelial carcinoma of the bladder. In October 2014, the Veteran was evaluated in an emergency room for urinary frequency with bloody urine. A follow-up evaluation with urinary clinic noted gross hematuria, deemed likely a bladder tumor. An oncology report, dated June 2015, indicated that a partial cystectomy and pelvic lymph node dissection was performed at a VA Hospital in December 2014. Negative margins were indicated. In March 2015, he had a transurethral resection of bladder tumor (TURBT), with a cloth evaluation. Three cycles of adjuvant chemotherapy were completed in May 2015. A follow-up cystoscopy in July 2015 showed no evidence of malignancy in the bladder. In this case, the Veteran has been afforded multiple VA examinations. In March 2019, the examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's throat cancer and/or bladder cancer is causally related to active service, to include as due to exposure to exhaust fumes while performing his duties as a field engineer. The examiner acknowledged consideration of the treatise or medical articles listed in the April 2018 Informal Hearing Presentation submitted by the Veteran's representative. The articles indicated that there is at least some evidence that diesel fumes may cause throat and/or bladder cancer. It was further suggested that based on the current standard medical literature review, there is no direct causal relationship between throat cancer/bladder cancer and diesel exhaust fumes during service. In an August 2019 informal hearing presentation, Counsel referenced an April 2018 submission which included competent medical treatise evidence from the Centers for Disease Control and Prevention (CDC) (an August 1988 publication) and a study by the National Institutes of Health, National Center for Biotechnology Information (NIH) which discussed the carcinogenic effects of exposure to diesel exhaust. Despite this evidence, the March 2019 VA opinion failed to consider or analyze this evidence. Pursuant to a Board decision, dated September 2019, the Veteran's claim was remanded to obtain an adequate medical opinion. In support of the stated finding, the Board noted that the March 2019 opinion was conclusory as there is no meaningful discussion of the 'current standard medical literature.' Moreover, the examiner failed to reconcile this conclusion with favorable medical articles which suggested that diesel exhaust is a potential carcinogen. Thereafter, an addendum medical opinion was obtained in January 2020. Following a review of the record, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's throat cancer and/or bladder cancer are etiologically related to active service, to include as due to exposure to exhaust or diesel engine fumes in performance of his official duties as a field engineer. In support of the stated conclusion, the examiner considered the literate review which included medical articles from the CDC and NIH involving inhalation of jet propulsion fuel and possible exposure effects to animals as documented in Counsel's appellate brief. According to the examiner, the articles made no reference a confirmed carcinogenic risk to humans. In fact, other studies show that military fuels or fumes are not genotoxic. A clarification opinion, dated April 2020, indicated which an association was suggested, there is no direct causal relationship between throat cancer/bladder cancer and diesel/exhaust fumes. Thereafter, Counsel associated an additional appellate brief with the claims file. Again, the VA opinions and related addendums were disputed as inadequate. Specifically, Counsel contends that the examiner's addendum opinion offered no analysis or detailed information as to why the literature on which it relied was more probative or representative of the overall consensus within the medical community as to whether a causal relationship exists between diesel exhaust fumes and cancer, rather than the medical articles from the CDC and NIH. Again, in January 2021, the Board found the examiner's opinion and related addendum inadequate. In so finding, the decision acknowledged the VA examiner's statement that the treatise evidence was reviewed, however, the opinion lacked any further meaningful discussion of the studies as applicable to the Veteran's claim. Accordingly, the Veteran's claim was remanded for an additional medical opinion. In May 2021, the VA examiner acknowledged a review of the record, to include the literature review. Thereafter, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's bladder cancer was incurred in or caused by active service, including as due to exposure to diesel and other exhaust fumes while performing his official military occupation. There is no confirmed evidence that exhaust fumes in such an environment can cause bladder cancer. Review of the articles submitted by the Counsel do not establish diesel fumes and other exhaust fumes as a possible cause of bladder cancer. Specifically, the first study involves animal studies and does not necessarily extrapolate to humans. The authors themselves noted human studies are required to confirm a link, which has not been done. Review of the current, widely accepted, peer-reviewed literature does not yield any studies confirming the occupational exposures to diesel fumes and other exhaust fumes can cause bladder cancer. As to the second study, a potential relative risk increase was suggested but failed to provide support sufficient to establish it. In contrast, the examiner conducted a review of the current professional treatises, literature and studies. In so doing, the examiner noted that the Veteran's single greatest risk for the development of bladder cancer is his history of excessive smoking. Although currently in remission, he acknowledged a prior habit of 35-packs or more per year. Therefore, it is less likely than not (less than 50 percent probability) that the Veteran's bladder cancer is causally related to active service, to include as due to exposure to exhaust fumes while working in the motor pool. Based upon the foregoing, the Board finds that service connection is not warranted. In this case, service treatment records were unavailable for review. Post-service, treatment records made no reference to an initial diagnosis of cancer until 2014, more than 3 decades after separation. While the Veteran is generally deemed competent to report on observable symptoms and their chronicity, there is no evidence that the Veteran possesses the requisite training or expertise to render a medical opinion as to a nexus between his current condition and active service, to include as due to exposure to exhaust fumes therein. Layno v. Brown, 6 Vet. App. 465 (1994), see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board recognizes that in some instances, lay persons are competent to provide opinions on medical issues, however the specific issue in this case (whether the Veteran's bladder cancer resulted from active duty, to include as due to exhaust fumes and engine fuel exposure) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377 n.4. As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In this case, the Veteran has been afforded multiple VA examinations. While the Veteran's has suggested a correlation to exposure to exhaust and engine fumes in service, there is no clinical evidence of complaints of symptoms or related diagnosis until 2014. Moreover, the diagnosis occurred more than three decades after separation and cessation of his exposure to identified toxins. By the Veteran's own admission, his background includes a lengthy history of excessive tobacco use. The medical evidence suggests a stronger linkage between his bladder condition and his history of tobacco use, rather than exposure to toxins which concluded decades earlier. Therefore, as no etiological relationship has been established, a nexus has not been shown. Lastly, the Board has fully considered the Veteran's representative arguments throughout the appeal period and has taken care to ensure a thorough review of the lay assertions of record and legal treatises provided by Counsel. As outlined in detail above, the Board cannot ignore the medical evidence which establishes a stronger linkage between his cancer and his history of tobacco use, rather than exposure to toxins which concluded decades earlier. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for bladder cancer is causally related to active service, to include as due to exposure to exhaust fumes while performing his duties as a field engineer. As the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for throat cancer The Veteran asserts that his throat cancer is causally related to active service, to include as due to exposure to exhaust fumes while performing his duties as a field engineer. As discussed in more detail below, the preponderance of the evidence is against his claim. As a preliminary matter, the Board incorporates by reference, the procedural arguments, clinical history and other findings noted in Section 1. Pursuant to a January 2021 Board Decision, the Veteran's claim was remanded to obtain an adequate VA opinion. On examination in May 2021, a prior diagnosis of a malignant neoplasm of the throat was noted. An initial date of diagnosis was listed as March 2014. During the clinical interview, the Veteran reported a lengthy period of hoarseness that remained unresolved prior to the initial diagnosis of throat cancer. Following a primary care evaluation, he was referred for additional diagnostic testing which revealed Stage 1-supraglottic larynx squamous cell carcinoma. Prescribed treatment included radiation therapy in May 2014. No surgery or chemotherapy was required. Follow-up treatment included re-evaluations with his oncologist every 6-months. Despite remission, he continues to experience periodic bouts with phlegm buildup and hoarseness that requires his to clear his throat. Remission of symptoms was achieved with use of cough medicine. No other residual symptoms were reported. According to the Veteran, performance of his official duties in-service, included routine exposure to exhaust fumes and diesel engine fuel without the benefit of a mask. On physical examination, no residual symptoms or other pertinent physical findings were identified. No visible scars were observed. In March 2014, a biopsy of the Veteran's throat revealed a mass to the left vocal cord. A pathology report confirmed an invasive moderately differentiated, keratinizing squamous cell carcinoma. A follow-up nasal endoscopy found no evidence of lesions in October 2018. No other significant diagnostic findings were identified. Following a review of the record, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's throat cancer was incurred in or caused by active service, to include as due to exposures which occurred therein. In support of the stated conclusion, the examiner noted an increased risk of throat cancer results from excessive tobacco use, to including smoking and chewing tobacco as well as exposure to toxic substances within the occupational environment. By the Veteran's own admission, he had a long history of smoking in excess of 30 packs per year. An initial diagnosis of throat cancer was first rendered in 2014. While the Veteran reports exposure to exhaust fumes and engine fuel during active service, an etiological linkage to active service cannot be established as there is no evidence of chronicity of symptoms or care dating back to active service. Accordingly, a nexus has not been established. Based upon the foregoing, the Board finds that service connection is not warranted. In this case, service treatment records were unavailable for review. Post-service, treatment records made no reference to an initial diagnosis of cancer until 2014, more than 3 decades after separation. While the Veteran is generally deemed competent to report on observable symptoms and their chronicity, there is no evidence that the Veteran possesses the requisite training or expertise to render a medical opinion as to a nexus between his current condition and active service, to include as due to exposure to exhaust fumes therein. Layno v. Brown, 6 Vet. App. 465 (1994), see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board recognizes that in some instances, lay persons are competent to provide opinions on medical issues, however the specific issue in this case (whether the Veteran's throat cancer resulted from active duty, to include as due to exhaust fumes or engine fuel) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377 n.4. As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In this case, the Veteran has been afforded multiple VA examinations. While the Veteran's has suggested a correlation to exposure to exhaust and engine fumes in service, there is no clinical evidence of complaints of symptoms or related diagnosis until 2014. Moreover, the diagnosis occurred more than three decades after separation and cessation of his exposure to identified toxins. By the Veteran's own admission, his background includes a lengthy history of excessive tobacco use. Therefore, as no etiological relationship has been established, a nexus has not been shown. Lastly, the Board has fully considered the Veteran's representative arguments throughout the appeal period and has taken care to ensure a thorough review of the lay assertions of record and legal treatises provided by Counsel. As outlined in detail above, the Board cannot ignore the medical evidence which establishes a stronger linkage between his cancer and his history of tobacco use, rather than exposure to toxins which concluded decades earlier. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for throat cancer is causally related to active service, to include as due to exposure to exhaust fumes while performing his duties as a field engineer. As the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.