Citation Nr: 21031253 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-24 199 DATE: May 21, 2021 ORDER The request to reopen the claim of entitlement to service connection for larynx cancer due to asbestos exposure is granted. Entitlement to service connection for larynx cancer due to asbestos exposure is granted. Entitlement to service connection for aphonia as a residual of larynx cancer is granted. Entitlement to service connection for permanent tracheostomy as a residual of larynx cancer is granted. FINDINGS OF FACT 1. In an October 2014 rating decision, the Veteran was denied entitlement to service connection for cancer of the larynx in part on the basis that there was no evidence that condition was incurred in service; the Veteran did not appeal the decision and no new and material evidence was received within a year of the decision. Therefore, the decision became final. 2. Since the October 2014 final rating decision, the Veteran has submitted a private medical opinion which states that the cancer of the larynx was caused by asbestos exposure. The evidence is both new and material, and cures an evidentiary defect which existed at the time of the October 2014 rating decision and this the claim is reopened. 3. The Veteran's larynx cancer was due to his in-service asbestos exposure. 4. The Veteran's permanent tracheostomy is the result of his larynx cancer. 5. The Veteran's aphonia is the result of his larynx cancer. CONCLUSIONS OF LAW 1. The October 2014 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. Evidence received since the October 2014 rating decision is new and material and the claim for service connection for cancer of the larynx is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for entitlement to service connection for larynx cancer have been met. 38 U.S.C. §§ 1110, 5107(2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for entitlement to service connection for permanent tracheostomy secondary to larynx cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 5. The criteria for entitlement to service connection for aphonia secondary to larynx cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 decision. The Veteran withdrew his request for a Board hearing in March 2021. For the reasons outlined above, the request to reopen the claim for service connection for larynx cancer is granted. Entitlement to service connection for larynx cancer, permanent tracheostomy and aphonia 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 granted for any disability that is the result of, proximately due to, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Notably, the Veteran contends that his larynx cancer is the result of his service in the United States Navy. Specifically, he maintains his cancer was caused by asbestos exposure while serving aboard ship and performing duties as a radarman. He further contends that his permanent tracheostomy and aphonia were caused by treatment for his larynx cancer. The Board finds that the Veteran was exposed to asbestos during his service. The Veteran's DD-214 reflects the Veteran served on active duty from July 1956 to September 1959. His DD-214 and personnel records indicate that he had more than two years of sea service aboard the USS Shields, with a specialty as a Radarman. This occupation has been associated with asbestos exposure. The Veteran was diagnosed with invasive squamous cell carcinoma (SCC) of the larynx in 2009. He underwent salvage total laryngectomy in 2010 with the final pathology confirming residual SCC and resultant permanent tracheostomy and aphonia. The April 2018 VA examiner opined it was less likely than not that the Veteran's laryngeal cancer was secondary to asbestos or smoke exposure or history of chronic tonsillitis during service. The examiner reasoned the Veteran's exposure was a very minimal level and occurred over a relatively short time frame. The examiner further indicated that the Veteran's latency period for diagnosis was 50 years and in excess of the expected latencies. The examiner also reasoned the Veteran had a major risk factor for this type of cancer due to his 10 year history of cigarette smoking. Finally, the examiner stated that removal of tonsils in service was not risk factor for later development of larynx cancer and laryngitis and hypertrophy of the tonsils was not related to primary vocal cord disease but simply an anatomical result of the limited air passage between the tonsils. In contrast, in March 2021, Dr. CK a board certified radiation oncologist opined to a "high degree of confidence" based on a review of the Veteran's medical and military service records and scientific evidence, that the Veteran's SCC of the larynx was at least as likely as not caused by conceded exposure to asbestos from his military occupational specialty aboard the USS Shields. Dr. CK reasoned that it was well documented that Navy ships from that era had asbestos material in use throughout the ships and VA has conceded his exposure. The specialist further stated that asbestos is universally recognized as a human carcinogen with no safe exposure levels and that multiple studies spanning decades consistently show that asbestos exposure is associated with SCC of the larynx regardless of other risk factors. He stated that asbestos fibers remain imbedded in target tissues permanently which accounts for long latency times and the Veteran's 48 year latency diagnosis was entirely consistent with the 40 plus years latency for asbestos related cancers. Dr. CK further noted the Veteran quit smoking in 1978, 31 years before diagnosis, and thus, must be discounted. He found that the Veteran had no known exposure to carcinogens other than asbestos. Dr. KK concluded that as result of his larynx cancer, the Veteran has a permanent tracheostomy and aphonia. Finally, Dr. CK also indicated that he was in complete disagreement with the April 2018 VA opinion from a non-specialist. He indicated that the VA's finding that minimal asbestos exposure did not cause cancer is incorrect as consensus from all medical references and regulatory agencies is that there is no safe limit for asbestos exposure and that the fibers remain indefinitely imbedded in tissues. Dr. CK refuted the VA opinion that no studies linked asbestos exposure with laryngeal cancer by listing and referencing numerous peer reviewed studies on the subject. The specialist further indicated that the VA opinion that asbestos related cancer latency period should be 10 years was incorrect and that asbestos related cancers have a notoriously long latency period in the 40 to 50 year range. Dr. CK also found that the VA opinion that the Veteran was treated with radiation, which placed him at risk for laryngeal cancer was incorrect as the standard of care treatment for vocal cord polyps today and in the 1990s consisted of laser ablation and never the use of ionizing radiation. The Board has afforded Dr. CK's positive nexus opinion substantial probative weight given the Veteran's conceded asbestos exposure and as it is well- reasoned and supported by medical and scientific evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's laryngeal cancer was related to his in-service asbestos exposure. There is no dispute that the Veteran has a permanent tracheostomy and aphonia as a result of his larynx cancer. (Continued on next page) Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for larynx cancer and the residual permanent tracheostomy and aphonia is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.30, 3.310. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.