Citation Nr: 21040110 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-35 962 DATE: July 2, 2021 ORDER Entitlement to service connection for pharyngeal squamous cell carcinoma is denied. FINDING OF FACT A preponderance of the evidence indicates that pharyngeal squamous cell carcinoma was not incurred during service. CONCLUSION OF LAW The criteria for service connection for pharyngeal squamous cell carcinoma are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had multiple periods of active service between September 1975 and March 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In May 2019, the Board remanded this matter for additional medical inquiry. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred pharyngeal squamous cell carcinoma during service. He indicates that he developed the cancer after possibly contracting human papillomavirus (HPV) on an overseas assignment. He indicates a belief that he contracted HPV in the Philippines between 1979 and 1981. Law and regulations 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; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain cancers are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, service treatment records (STRs), service personnel records (SPRs), VA treatment records, and a VA compensation examination report dated in April 2020. The evidence demonstrates that the Veteran has been diagnosed with a current disorder. Private and VA medical evidence establishes that the Veteran has had pharyngeal squamous cell carcinoma since 2014. The evidence also indicates that the Veteran was treated for warts and venereal disease during service and that just prior to service discharge in 2008, he was treated for dental problems, including heavy bleeding, irrigation issues, and gum disease. A preponderance of the probative evidence indicates, however, that he did not incur pharyngeal cancer during service. The STRs do not document the presence of either cancer of the pharyngeal area or treatment for that disorder, or for HPV. A March 2008 report of medical assessment is negative for such disorders. An April 2008 treatment record indicates normal neck, pharynx, throat, and mouth. The earliest medical evidence addressing cancer is found in private medical evidence dated in 2014, indicating an initial diagnosis of pharyngeal cancer in August 2014, several years after discharge from service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Therefore, the evidence indicates that the Veteran did not have the characteristic manifestations sufficient to identify a chronic disease entity either during service or in the several years following service. Thus, the evidence indicates that the Veteran did not pharyngeal cancer during service or in the first year after discharge from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, the only medical commentary of record on this issue counters the claim. See 38 C.F.R. § 3.303. Pursuant to the Board's May 2019 remand, the Veteran underwent VA examination in April 2020. The examiner found it unlikely that pharyngeal cancer related to service and found the Veteran's theory of causation regarding contraction in the Philippines speculative. In support of the opinion, the examiner noted other factors which were more likely the cause of HPV-related cancer. The examiner cited evidence indicating that HPV infection was very common in adults in the United States. This fact, combined with the fact that the Veteran had multiple sexual partners and multiple marriages, led the examiner to conclude that he more likely than not contracted HPV during a committed relationship after service. The examiner also noted the Veteran's history of smoking as a factor in his oral cancer development, stating that studies have shown that '"new oncogenic oropharyngeal HPV infection was associated with former or current smoking."' The examiner also addressed the evidence indicating warts, venereal disease, and dental problems during service. The examiner noted that dental problems during service related not to cancer or HPV but to "chronic poor oral hygiene, signs of heavy smoking, bacterial plaque, gingivitis and periodontitis." The examiner noted treatment for venereal disease during service, to include growths on the penis, and found it unrelated to cancer or HPV. Rather, the examiner indicated the growths on the penis were not venereal warts, and that the Veteran incurred non-gonorrhea urethra, which is unrelated to HPV. Moreover, the examiner noted treatment for plantar warts during service, which the examiner found unrelated to venereal warts or HPV. The [V]eteran denies having any history of penile warts. The only type of warts that the [V]eteran reports experiencing in the past is plantar warts. There are a multitude of strains of HPV and the different strains cause different conditions. Plantar warts are caused by strains 1, 2, and 4. Genital warts are predominantly caused by strains 6 and 11 but can also be caused by 42, 43, 44, 55. The high risk strains of HPV that cause malignancies are 16, 18, 31, 33, 35, 39, 45, 51.... This [V]eteran had right tonsillar squamous cell carcinoma. Studies have shown that over 84% of the HPV positive tonsillar carcinoma are caused by HPV strain 16 and 4.6% are caused by HPV 33. The April 2020 VA opinion is probative. It addresses probability. It is explained with citation to facts in the record, is based on a review of the claims file, and is based on an examination and interview of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). It is more persuasive than the Veteran's theories regarding causation. The Veteran is competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. The development of cancer is an internal pathology beyond his capacity for observation. It is a medical matter. Its development is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the VA opinion is more credible than the Veteran's. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The probative value of the Veteran's lay assertions are therefore outweighed by the VA opinion on the question of medical nexus here. (Continued on the next page) In assessing the issue of medical nexus to service, the Board has also considered an October 2014 letter from the Veteran's treating oncologist, which states that the cancer was an "HPV positive disease [that] may have been from exposure over 20 to 30 years ago[.]" With regard to the issue of medical nexus, this statement is of limited probative value. The physician does not specifically connect HPV or cancer to service. And in stating, "may have been", the opinion addresses possibility rather than probability. It is therefore of limited probative value of the question regarding a relationship between service and disease onset. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Based on the foregoing, the Board finds that the probative evidence of record preponderates against the claim of entitlement to service connection for pharyngeal cancer. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee, 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.