Citation Nr: 21030609 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-42 339 DATE: May 19, 2021 ORDER Service connection for metastatic squamous cell carcinoma (MSCC) is granted. FINDINGS OF FACT 1. The Veteran was exposed to environmental hazards, to include burn pits, while serving on active duty in Iraq. 2. The evidence as to whether the Veteran's MSCC is due to environmental exposures, to include burn pits, while serving on active duty in Iraq is at least in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for MSCC have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1984 to March 1992, and from June 2006 to September 2007, to include service in Iraq. He also had service in the Army National Guard. His decorations include the Iraq Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In March 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in January 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. Service connection for MSCC The Veteran contends that his MSCC was incurred in or caused by service. Specifically, he contended at the March 2020 Board hearing that the cancer was due to toxic chemical or other environmental exposures while serving on active duty in Iraq. He further specified that he was exposed to toxic chemicals from a burn pit in Kirkuk, Iraq, that his cancer was caused by that exposure, and that it was not caused by post-active duty exposure to toxic chemicals while working as a government contractor in Iraq or Afghanistan. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the Veteran had one tour of active duty in Iraq, which was from August 2006 to August 2007. He later returned to Iraq as a full-time government contractor between April 2011 and September 2011. He also worked as a full-time government contractor from September 2011 to December 2012 in Afghanistan. The record clearly demonstrates that the Veteran has a current diagnosis of MSCC. Therefore, the first element of service connection has been established. The evidence also reasonably establishes that the Veteran was exposed to environmental hazards during his active service in Iraq. As noted above, he testified at the March 2020 Board hearing that he had been exposed to burn pits while serving on active duty there. He is competent to relate events that he has personally observed, and the Board finds no reason on the current record to question his credibility. See Layno, supra. Indeed, in October 2017, he submitted a lay statement from a fellow service member who corroborated the account, stating that he served with the Veteran in Iraq during his 2006 to 2007 deployment and that there were burn pits adjacent to where they were stationed at that time. Therefore, the second element of service connection has also been established. The key issue before the Board is whether there is a nexus, or link, between the Veteran's cancer and his exposure to environmental hazards during active service. As noted in the Board's January 2021 remand, the Veteran has submitted several nexus statements from private treating providers. He submitted three from R.M., M.D., two of which are dated in January 2015 and one of which is dated in March 2020. He submitted one from J.S., M.D. in January 2015, and submitted two from E.G., M.D. dated in September 2015 and March 2020. At the time of the Board's prior remand, he had also submitted a statement from J.B., M.D., dated in October 2015. The Board found that each of the proffered nexus statements were insufficient to support an award of service connection for a variety of reasons because the providers confused the Veteran's periods of active service and contract work, because they confused the location of his service and/or the location of where he was exposed to environmental hazards, or because the opinions lacked sufficient rationale. The Board notes specifically that it found Dr. B.'s October 2015 opinion insufficient because it addressed tonsil cancers generally, rather than the Veteran's case specifically, and because he provided no rationale to support his opinion. The Veteran was afforded a VA Gulf War examination in July 2015. The examiner offered a negative nexus opinion, reasoning that a review of the Veteran's service treatment records (STRs) was silent for any complaints of a throat lump or problems. She also noted the Veteran's work as a government contractor in Iraq and Afghanistan, and opined that it was at least as likely as not that the Veteran's cancer was caused or incurred while he was on inactive status in the National Guard and employed full-time as a government contractor. In May 2016, the RO obtained an addendum opinion from another VA examiner. He also offered a negative nexus opinion, reasoning that the Veteran's STRs did not document MSCC of the tonsil, and that the majority of peer-reviewed medical literature did not establish toxic exposure in Southwest Asia as the cause of MSCC of the tonsil. In January 2021, the RO obtained a third addendum opinion from another VA examiner. She also offered a negative nexus opinion, reasoning that the cancer diagnosis was rendered post-service, and that to provide a diagnosis as secondary to service, evidence including medical records would have to be identified. In May 2021, the Veteran submitted a second statement from Dr. B., an independent medical expert. Dr. B. stated that he evaluated the Veteran in 2015 and reviewed the available medical records, to include the statements of Drs. M. and G. Dr. B. stated that the evidence supporting a nexus in the Veteran's case included the presence of known toxic contaminants in the Iraqi War theater and the lack of any other known risk factors in the Veteran related to a genetic predisposition to developing cancer of the tonsil (MSCC). He continued that his opinion was further informed by continued revelations over the last six years pertaining to toxic exposure and burn pits as they relate to U.S. personnel serving in the area of Southwest Asia, that medical science was well aware of the hazards posed by toxic airborne chemical compounds as well as other environmental hazards, and that documentation as to the existence of those hazards was irrefutable and established in studies by the Environmental Protection Agency, the American Public Health Association, and the National Academy of Sciences. Dr. B. stated further that the latency period in the development of the Veteran's cancer and the relative rarity of the cancer was also highly suggestive of the cancer having arisen from exposure to multiple toxic compounds in Iraq. He opined that coupled with the Veteran's lack of risk factors otherwise, it was more likely than not that the Veteran's cancer was related to exposures to environmental hazards in Iraq while on active duty. The Board finds Dr. B.'s May 2021 opinion to be highly probative and affords it significant weight. His opinion was based on review of the Veteran's record, including his own reports and the medical records, with a thorough rationale provided for the opinion offered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board acknowledges that the July 2015, May 2016, and January 2021 VA examiners all offered unfavorable nexus opinions. However, all of those examiners offered their opinions without benefit of reviewing subsequent evidence, including the May 2021 opinion from Dr. B. Still further, and as noted in the Board's January 2021 remand, the July 2015 and May 2016 VA examiners did not review all of the Veteran's STRs, some of which were added to the claims file after they provided their opinions. As to the January 2021 VA examiner's opinion, the Board finds it conclusory in that it lacks any meaningful rationale and fails to take into consideration all of the evidence of record. The examiner's rationale that the cancer was not diagnosed until after service fails to take into consideration the Veteran's primary contention that it was exposures to environmental hazards during service that later caused his cancer, and her statement that records would need to be identified in order to offer a diagnosis as secondary to cancer indicates that she did not review the claims file, which contains ample records and treating source statements addressing the issues in the case. In any event, the Board finds the unfavorable opinions no more probative than the favorable opinion from Dr. B. The evidence, at a minimum, gives rise to a reasonable doubt on the matter of nexus. 38 C.F.R. § 3.102. In arriving at these conclusions, the Board observes that the record has given rise to questions relating to whether the Veteran's exposure to environmental hazards during his active service, as opposed to exposures while working as a government contractor in Iraq, caused his MSCC. However, as noted, the evidence demonstrates that he was exposed to environmental hazards during active service, and that it is at least as likely as not that his cancer is due to such exposures. Because the evidence establishes that it is at least as likely as not that his cancer is due, at least in part, to in-service, active duty exposures, the Board is satisfied that the criteria for an award of service connection have been met. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.