Citation Nr: 21015223 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-62 259 DATE: March 17, 2021 ORDER Entitlement to service connection for lung scars, to include as secondary to squamous cell carcinoma (claimed as throat cancer), is granted. FINDINGS OF FACT 1. The Veteran is service connected for squamous cell carcinoma (claimed as throat cancer) associated with herbicide exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his lung condition, scarring, is associated with his service-connected squamous cell carcinoma. CONCLUSION OF LAW The criteria for a lung scarring, to include secondary to squamous cell carcinoma (claimed as throat cancer) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102; 3.159(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from May 1966 to April 1968. He served in the Republic of Vietnam (RVN) and was awarded the Vietnam Service Medal, Vietnam Campaign Medal, National Defense Service Medal and two overseas service bars. See DD 214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2019 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. This matter was previously before the Board in January 2020 at which time the Board found new and material evidence to reopen the matter and remanded the issue for a new examination to address the nature and etiology of any lung scarring, to include as a result to treatment for the Veteran’s squamous cell carcinoma. That development has been completed in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). During the course of this appeal, the RO granted service connection for squamous cell carcinoma (claimed as throat cancer) associated with herbicide exposure. See January 2021 Rating Decision which is a full grant of the benefit sought on appeal, so it no longer on appeal before the Board. 1. Entitlement to service connection for a lung condition, lung scars, to include as secondary to squamous cell carcinoma (claimed as throat cancer) The Veteran contends that his lung scars are due to his service in Vietnam, and his MOS which was to recover jet fuel from rice paddies. See August 2019 Board hearing transcript, pg. 10. Additionally, the Veteran contends that his lung scars are related to the treatment he received for squamous cell carcinoma. See id. at pg. 5. His MOS was a Chemical Operator’s Apprentice. See DD 214. Service connection may be granted for 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). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board gives a claimant the benefit of the doubt on any issue material to his/her claim when evidence is in equipoise, but determines the competence and credibility of the evidence, and weighs the competence and probative value of the evidence, including lay statements, against the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the record is not in dispute that the Veteran has suffers from a current disability in the form of a lung condition which includes scarring and nodules that causes a mild restriction of the lungs. See December 2, 2020 VA Lung Scar Examination, pg. 3. The Veteran is also service connected for squamous cell carcinoma, claimed as throat cancer, which the December 2020 examiner opined is a respiratory tract cancer. See December 22, 2020 VA Squamous Cell Cancer Medical Opinion, pg. 5; see also January 13, 2021 SSOC. The Veteran’s exposure to herbicides is also conceded. See id. at pg. 2. Accordingly, the Board’s analysis is limited to the nexus elements of his claim. The Veteran was afforded a VA examination in December 2020 for lung scars, to include whether it is at least as likely as not due to or aggravated by his squamous cell carcinoma. The examiner found that there is conflicting evidence regarding the etiology of the Veteran’s lung scarring. First, the examiner noted that one of the Veteran’s physician concluded that radiation treatments for his squamous cell cancer caused his lung scarring. See December 2020 VA Examination, pg. 5. The examiner noted that the Veteran testified during his Board hearing that he went through radiation treatments for his squamous cell carcinoma of the respiratory tract. The Veteran testified that his physician did a yearly check on his lungs and found that after the radiation treatments, he was found to have scar tissue in his lung. He testified that his doctors determined it was from the radiation treatments for his throat cancer. See August 2019 Board hearing, pg. 5. The examiner opined that although there is evidence that radiation treatment caused lung scarring, it was outweighed by contradictory evidence, namely in 2017 a pulmonology expert indicated that his lung condition was consistent with obesity and chest wall enlargement. See December 2020 VA examination opinion, pg. 5. Whereas, only one medical entry indicated that radiation treatments caused the lung scarring. Furthermore, the examiner reasoned that because there is no pre-disease imaging to show that the scarring isn’t due to smoking versus radiation treatment, adding that the Veteran quit smoking cigars in 2003. Id. Thus, the nature of the lung scarring cannot be determined without resorting to speculation. See December 2020 VA examiner opinion, pg. 5. Therefore, the examiner opined that the Veteran’s lung scars were less likely than not due to or aggravated by the Veteran’s squamous cell carcinoma. However, the Board notes that the record contains more than one medical record entry that indicates that the Veteran’s lung scarring is due to radiation treatments for his service-connected squamous cell carcinoma. Additionally, a baseline level of the lungs was established in 2006 via Xray, PET and CT imaging. The record indicates that before the Veteran’s radiation treatments began in November 2006, PET-CT imaging scans of the Veteran’s body; the lung scans were unremarkable. In March 2007, after radiation therapy was completed, full body PET-CT scans were repeated and compared to pre-radiation therapy imaging. The March 2007 scans were abnormal for lung scarring. See March 30, 2007, VyMed A PET/CT Fusion Center, Whole Body PET-CT report, by Dr. E.C. noted that the interstitial opacities in the right lung are “likely secondary to radiation therapy.” Id. In April 2007, Dr. J.M.K. noted that post-radiation treatment Chest Xray and CT scans “showed apical opacities, almost certainly due to his radiotherapy.” A November 2008 radiology report noted that scarring was noted in the apices of both lungs. See November 13, 2008, Radiology Report, by Dr. M.H. To the extent that the December 2020 examiner opined that the Veteran’s lung scarring is less likely than not due to or aggravated by his service-connected squamous cell carcinoma, the Board finds the opinion is based on an inaccurate factual basis because a baseline level of his lung condition can be established, and more than one treating physician indicated that lung scarring is “likely secondary to” and or “almost certainly due to his radiotherapy” for the squamous cell carcinoma. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board acknowledges that the private medical opinions of Dr. J.M.K. and Dr. E.C. do not conform to the ‘as likely as not’ legal standard. However, they are based upon a review of the Veteran’s medical records, examination, pre- and post-radiation diagnostic testing and clinical history. Therefore, to the extent Dr. J.M.K. and Dr. E.C. opined that the Veteran’s lung scarring is “likely secondary to” or “almost certainly due to” the radiation treatments for his squamous cell carcinoma, the Board finds that they have probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion). Furthermore, the Veteran testified that his physicians told him that his lung scarring was due to the radiation treatments for his throat cancer. See Board Hearing Tr., pg. 5. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis. See Jandreau, 492 F.3d at 1376-77. Here, the Veteran testified that his doctors performed scans of his lungs and told him that his lung scarring was due to the radiation treatments, which is corroborated by contemporaneous medical records indicating that his lung scarring was due to radiation treatments for his service connected squamous cell carcinoma. The Board finds his testimony to be competent and credible regarding the contemporaneous reports of the nature and etiology of his lung condition diagnosis. See id. (Continued on the next page)   Thus, the Board finds that the preponderance of the evidence is not against the Veteran’s claim; the benefit of the doubt doctrine is available for application and the claim is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.