Citation Nr: 21032241 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-30 092 DATE: May 26, 2021 ORDER Entitlement to service connection for esophageal cancer is denied. Entitlement to service connection for peripheral vascular disease, secondary to esophageal cancer, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's esophageal cancer is related to an active duty period of his military service. 2. The Veteran's peripheral vascular disease is not secondary to esophageal cancer, and is not otherwise related to an active duty period of his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for esophageal cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral vascular disease due to esophageal cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Michigan National Guard from November 1964 to June 1968 with active duty service from January 4 to June 5, 1965. He also served in the Air Force Reserves from June 1968 to June 1971. These matters come to the Board of Veterans' Appeals (Board) from an October 2018 rating decision issued by the Agency of Original Jurisdiction (AOJ). In November 2019, the Veteran's case was received at the Board. Then in February 2021, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file. SERVICE CONNECTION 1. Entitlement to service connection for esophageal cancer. The Veteran contends his esophageal cancer is related to his service as a wheeled vehicle mechanic in the Michigan National Guard. He contends his job in the National Guard exposed him to chemicals, to include jet fuel, that may have played a role in the development of his cancer. See Transcript dated February 2021 at 3. In order to qualify for VA compensation benefits, the claimant must demonstrate he or she is a "Veteran." A "Veteran" for VA compensation benefits purposes is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes "active duty, which is full-time duty in the Army, Navy, Marine Corps, Air Force, or Coast Guard, other than "active duty for training." Also, active service includes may include periods of active duty for training (ACDUTRA) and, in specific cases, inactive duty for training (INACDUTRA). 38 U.S.C. § 101(24); 38 C.F.R. § 3.6 (a). When a claim for benefits is based on a period of ACDUTRA, there must be evidence that the claimant became disabled because of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. 38 U.S.C. §§ 101(2), (22), (24); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not qualify as a "Veteran" for VA compensation purposes. 38 U.S.C. § 101(24); 38 U.S.C. §§ 101(2), 1110; Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Presumptive service connection does not apply to claims predicated on ACDUTRA and INACDUTRA service, but only for active duty. Biggins v. Derwinski, 1 Vet. App. 474 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). When a claim for benefits is based on a period of INACDUTRA, there must be evidence that the claimant became disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. In the absence of such evidence, the period of INACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not qualify as a "Veteran" for VA compensation purposes. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6 (a). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Evidence on an issue is in "approximate balance" when the evidence for and against a finding on that issue is "almost exactly or nearly equal" or "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001). Beginning with the Veteran's service, his service personnel records show he entered the Michigan National Guard in November 1964 and worked as a wheeled vehicle mechanic through June 19, 1968, with a period of ACDUTRA from January 4 to June 5, 1965. See National Guard Bureau (NGB) Form 22. It also shows he separated from the Guard to enlist in the Air Force Reserves. The record indicates the Veteran enlisted in the Air Force Reserves on June 21, 1968, two days after separating from the Guard. See Air Force (AF) Form 973, Request for Authorization and Change of Administrative Orders. His entrance examination for the Reserves does not note any symptoms. See June 2, 1968, Report of Medical Examination. Part of the examination included a questionnaire that allowed the Veteran to report observations association with any medical problems. Also, it specifically asked if he observed "tumor, growth, cyst, cancer." The Veteran checked "no." He also noted his health is "good." See June 2, 1968, Report of Medical History at 1. The record reflects the Veteran was honorably discharged from the Reserves on June 19, 1971. Service personnel records show he worked as a general purpose vehicle repairman and, later, maintenance equipment repairman. See AF Form 7, Airman Military Record, at 1. The record indicates the Veteran continued to work as a mechanic following service, and retired from that occupation sometime before August 2014. See VA Medical Center (VAMC) Record by D.T., Au.D. In May 2018, the VA received an application for compensation benefits for esophageal cancer due to exposure to asbestos and jet fuel. See VA 21-526EZ at 2. Also, peripheral vascular disease (PVD) secondary to esophageal cancer. A few months later, in September 2018, the Veteran underwent VA disability examinations for his esophageal cancer and PVD. As to the examination for esophageal cancer, the Veteran reported he was diagnosed with esophageal cancer in February 2018 and underwent surgery in July of the same year. See VA Disability Benefits Questionnaire (DBQ) Esophageal Conditions at 2. The examiner noted the diagnosis of esophageal cancer. She noted the Veteran has difficulty swallowing solids and liquids. She also noted testing in March 2018 did not show signs the Veteran inhaled fibers of asbestos. Id. at 1, 2. As to the Veteran's examination for PVD, the examiner noted the Veteran was diagnosed and treated for PVD in June 2018. She also noted it is asymptomatic. See September 2018 VA DBQ Respiratory Conditions at 1, 2. Then the examiner opined that the Veteran's esophageal cancer is not related to his service. The examiner explained that medical literature does not support finding asbestos exposure is associated with the development of the Veteran's type of cancer. Also, testing did not indicate the Veteran inhaled fibers of asbestos. The examiner added that medical literature does not indicate esophageal cancer is associated with the development of PVD. See September 2018 Medical Opinion at 1. In May 2019, the VA received an abstract of a medical article titled "Biological and Health Effects of Exposure to Kerosene-Based Jet Fuels and Performance Additives." The abstract expressly states there is little evidence that direct exposure to jet fuel by handling it, or indirect exposure, causes cancer or other diseases. But it encourages further research on the matter because people who worked with jet fuel report health complaints. See PubMed.gov, Biological and Health Effects of Exposure to Kerosene-Based Jet Fuels and Performance Additives, https://pubmed.ncbi.nlm.nih.gov/12775519/ (last visited May 18, 2021). The complete article was found by the Board through an online search. The article is around 95 pages and goes into detail about additives found in jet fuel and whether there is medical evidence between those additives and health problems. In the summary, the authors conclude "there is little evidence that acute or long-term exposure to [jet fuels] results in cancer, serious organic disease, or death in humans." The authors emphasize there is evidence that repeated direct exposure to jet fuels can result in skin cancer in laboratory animals. See ResearchGate.Net, Biological and Health Effects of Exposure to Kerosene-Based Jet Fuels and Performance Additives, https://www.researchgate.net/publication/10734520_Biological_And_Health_Effects_Of_Exposure_To_Kerosene-Based_Jet_Fuels_And_Performance_Additives (last visited May 18, 2021). In February 2021, a Board hearing was conducted for the Veteran's entitlement claims. The Veteran indicated that, while serving in the Guard, he worked as a wheeled vehicle mechanic. He worked on a wide variety of vehicles, to include cars, heavy equipment, to 10-ton trucks. He reported that, due to the nature of his work, he was exposed to a lot of chemicals. He added that even though he did not work on airplanes, he was exposed to jet fuel. He stated he was around the hangers that house airplanes and oftentimes transported the aircrew, to include aircraft mechanics. See Transcript at 3-4, 8. The Veteran testified that, he came to believe his esophageal cancer is related to his service through a nurse he talked to around the time he had cancer surgery. The nurse informed the Veteran his symptomatology is similar to the symptoms found in other Veterans whose cancer was due to their service. The nurse advised the Veteran to investigate getting service-connected for his cancer. The Veteran took the nurse's advice and sought disability compensation. He added that, even though he is not certain his cancer is related to his service, his job as a mechanic exposed him to chemicals over several years and he believes that played a part in the development of his cancer. Id. at 5. The Veteran also testified his doctor never told him there is link between his esophageal cancer and PVD. Id. at 6. A. Whether the Veteran qualifies as a "Veteran" for VA compensation purposes at any time during the period from January 1965 to June 1971. Since the Veteran served as a Guardsman, then Reservist, from January 1965 June 1971, the first question is whether any of his service qualifies as active duty service for VA compensation purposes. To answer that question, the first issue is whether any periods of ACDUTRA qualify as active service. That means even if the Veteran has periods of ACDUTRA, the evidence must support finding he incurred a disease or injury in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Here, the available service personnel records show he performed full-time duty as a Guardsman from January 4 to June 5, 1965. See DD214. Thus, the record reflects 5 months and 2 days of ACDUTRA. The medical evidence of record does not support finding his esophageal cancer was incurred during the relevant period of ACDUTRA. The available STRs do not show complaints or treatment for any physical malady, to include symptoms associated with esophageal cancer. Although the available STRs do not include medical records from his service in the Guard, the entrance examination for the Reserves was conducted while the Veteran was still serving in the Guard. Considering reports to medical providers are generally found reliable and he did not mention complaints or treatment of any kind, the Board finds it credible evidence that indicates he had not been observing symptoms associated with esophageal cancer at that time. See June 2, 1968, Report of Medical Examination and Report of Medical History. The September 2018 VA medical opinion weighs strongly against finding the Veteran's esophageal cancer was due to his service during the relevant period of ACDUTRA. The examiner considered her personal examination and observations of the Veteran. Thus, the Board finds the examiner was informed of the relevant details of the Veteran's past medical history when she rendered his conclusion. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). Although the examiner did not specifically discuss the 5 months and 2 days at issue here, her conclusion that it is not related to service includes the period of ACDUTRA. She explained that medical testing indicates he did not inhale asbestos fibers during service and, if he did, medical literature does not associate a causal connection between asbestosis and his cancer. See September 2018 VA Medical Opinion at 1. The Board finds her explanation sufficient to evaluate whether the data she relied on connects to her conclusion. Nievez-Rodriguez, 22 Vet. App. at 301. Considering her opinion is supported by objective testing, the Board assigned it great weight against finding his cancer was due to the relevant period of ACDUTRA. The Board recognizes the examiner did not discuss the Veteran's reports of exposure to jet fuel. The Veteran had testified the extent of his exposure included residual vapors emanating from hangars and the uniforms of pilots and maintenance personnel. In any event, the medical article he provided weighs against finding exposure to jet fuel during the relevant period caused his esophageal cancer. The article states there is little evidence that short or long-term exposure to jet fuel causes cancer. Thus, the Board finds it is medical evidence that weighs against finding any exposure to jet fuel during the relevant period of ACDUTRA caused his esophageal cancer. The Board notes the medical article also constitutes competent evidence that addresses the potential relationship between the Veteran's esophageal cancer and exposure to jet fuel during service. Therefore, even if the Veteran's lay assertions met the low bar for a new examination, that article provides sufficient evidence to decide the issue of a nexus. Thus, a new examination is not required. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Veteran has provided lay testimony that his esophageal cancer is due to his service, it was assigned little to no weight towards finding it was caused by or incurred during the relevant period of ACDUTRA. His statements and observations are competent to support an in-service injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). But they are not competent to render an etiological link between exposure jet fuel vapors, asbestos, or any other chemical he may have come in contact with during service, to include the relevant period of ACDUTRA. Id. Second, his testimony was not detailed enough for the Board to determine any other chemicals he may have been exposed to during the relevant period of ACDUTRA. The Veteran spoke about the entirety of his service when referring to his esophageal cancer. See Transcript dated February 2021 at 3-4, 8. Without more, the Board cannot evaluate what, if any, chemicals he came in contact with from January 4 to June 5, 1965. The lack of specificity diminished the probative value of his statements and, as a result, they were assigned little to no probative weight. In this case, the evidence weighs against finding his esophageal cancer was incurred in or due to the relevant period of ACDUTRA (January 4 to June 5, 1965). The Veteran's lay statements are not competent to diagnose the presence of esophageal cancer. In contrast, the VA examiner who prepared the September 2018 VA medical opinion is competent to render such an opinion. She concluded it is not due to asbestos exposure. The medical article the Veteran submitted weighs against finding it is due to jet fuel exposure. Because the Veteran's testimony was too general to identify any other chemicals he may have been exposed to during the relevant period, there are no other substances to consider. As a result, doubt could not be resolved in the Veteran's favor. Gilbert, 1 Vet. App. at 54. Because the evidence does not support finding his esophageal cancer was incurred in or caused by the period of ACDUTRA, it does not qualify as active military service. 38 U.S.C. §§ 101(2), (22), (24). Accordingly, that period of service does not qualify the Veteran for VA compensation benefits. The next issue is whether any period of INACDUTRA qualifies as active service. Generally, that is weekend drills and/or training. The Veteran's STRs weigh against finding any period of INACDUTRA while serving in the Guard led to an injury. As discussed above, the Veteran's entrance examination for the Reserves captures the Veteran's health around the time he was leaving the Guard. He does not mention any disabling conditions at that time. Also, his expressed statement that his health is "good" provides credible evidence that weighs against finding he incurred a disabling condition due to any period of service as a Guardsman. See June 2, 1968, Report of Medical Examination and Report of Medical History. The Veteran's lay statements weigh strongly against finding any period of INACDUTRA in the Reserves resulted in an injury during the line of duty. When asked about his service, he did not report any specific injuries that led to disabling conditions. Although the hearing was mainly focused on claims associated with esophageal cancer, it is likely he would have also reported other events he thought also contributed to a disability. Thus, the Board finds his testimony credible evidence that weighs against finding he suffered any disabling injuries from during his service in the Reserves. The Board observes the Veteran has suggested the cumulative effect of exposure to chemicals while serving as a mechanic in the Guard and Reserves caused his esophageal cancer; however, the Veteran's lay statements are not probative evidence that could be considered when evaluating a nexus. Determining whether a chemical is linked to the development of cancer is a medical question the Veteran is not qualified to answer. Jandreau, 492 F.3d at 1377. Thus, his statements cannot support finding that years of exposure to a chemical during periods of INACDUTRA amounted to an injury. The September 2018 VA medical opinion also weighs against finding any period of INACDUTRA in the Guard or Reserves resulted in an injury, at least due to asbestos exposure. As discussed above, the examiner considered all of the Veteran's service. She concluded the Veteran's service did not result in an injury stemming from asbestos exposure. In this case, the evidence weighs against finding any period of INACDUTRA qualifies as active service. The Veteran's lay statements are not competent to diagnose the presence of esophageal cancer at any time during his service. His STRs weigh against finding he was injured while in the Guard. Also, his February 2021 Board hearing testimony weighs against finding he was injured in the Reserves. Thus, the competent evidence of record is against finding an injury during any period of INACDUTRA. As a result, doubt could not be resolved in the Veteran's favor. Gilbert, 1 Vet. App. at 54. Because the evidence does not support finding the Veteran was injured during a period of INACDUTRA, it does not qualify as active military service. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Accordingly, that period of service does not qualify the Veteran for VA compensation benefits. In sum, the Veteran has not established he incurred esophageal cancer during a period ACDUTRA. Also, he has not shown he is disabled from an injury during a period of INACDUTRA. 2. Entitlement to service connection for peripheral vascular disease, secondary to esophageal cancer. The Veteran contends his diagnosed PVD is secondary to esophageal cancer. See May 2019 NOD at 2. The Board notes a search of the record did not show PVD was incurred during the Veteran's period of ACDUTRA. The Veteran's STRs do not show he reported complaints or treatment associated with PVD when he left the Guard and entered the Reserves. See June 2, 1968, Report of Medical Examination and Report of Medical History. During his February 2021 Board hearing, he did not report observing symptoms associated with PVD at any time during a period of ACDUTRA or INACDUTRA. See Transcript dated February 2021 at 6. Thus, the lay and medical evidence weigh against finding he qualified as a "Veteran" for VA compensation purposes based on symptomatology associated with PVD. The Board also notes even if the Veteran had established entitlement to service connection for esophageal cancer, the evidence weighed against finding it led to the development of PVD. The September 2018 VA medical opinion weighed strongly against finding a causal connection. The examiner indicated that, based on her research and medical understanding, there is no nexus between esophageal cancer and PVD. See VA Medical Opinion at 1. Considering her opinion was the only evidence that was competent to evaluate the issue, it weighed against finding his esophageal cancer caused PVD. In sum, consideration of entitlement to service connection secondary to esophageal cancer is not warranted. Even if it was, the evidence did not support finding his esophageal cancer caused PVD. Also, he has not raised any other issues nor have any other issues been reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552-54 (2008) (holding the Board is not required to address issues unless specifically raised by the claimant or reasonably raised by the record). The Board regrets a more favorable decision could not be reached in the Veteran's case. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.