Citation Nr: 21041718 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-08 687 DATE: July 10, 2021 ORDER Entitlement to service connection for a pulmonary disability, to include a streptococcal (hereinafter "strep") infection, is denied. Entitlement to service connection for lymph node cancer is denied. REMANDED Entitlement to service connection for right pyriform cancer is remanded. Entitlement to service connection for tongue cancer is remanded. Entitlement to service connection for tonsil cancer is remanded. FINDING OF FACT The Veteran does not have current diagnoses of a pulmonary disability, a current strep infection, or lymph node cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for a pulmonary disability, to include a strep infection, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2020). 2. The criteria for service connection for lymph node cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active naval service from June 1986 to December 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with he claims file. This case was previously before the Board in September 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Service Connection Pulmonary Disability, to include Strep Infection, and Lymph Node Cancer The Veteran has asserted that he has a strep infection (claimed as a lung disability) and lymph node cancer that are related to his active service. Service treatment records (STRs) are silent for any complaints of, or treatment for a disability related to lymph nodes. However, the STRs do show that in February 1990, the Veteran was seen in medical for complaints of sore throat and vomiting, the examiner diagnosed strep throat (pending test results) and a default diagnosis of viral syndrome. In July 1990, the Veteran was seen in medical for complaints of a sore throat. The examiner diagnosed acute tonsillitis, and noted that an abcess needed to be ruled out. Upon subsequent follow-up, the Veteran was diagnosed with a peritonsillar abcess and was referred to an ear, nose, and throat specialist (ENT) for further treatment. Later in July 1990, the Veteran was hospitalized for treatment of a peritonsillar abcess. His abcess was drained and he was given intravenous (IV) antibiotics. He was ultimately discharged from the hospital and noted to be in "excellent" condition In August 1990. In April 1992, the Veteran was seen for complaints of nasal congestion, productive cough, and sputum. At that time, it was noted that the Veteran smoked one pack of cigarettes per day, and that he had a history of tonsilitis and peritonsillar abscesses. He had no history of asthma, pneumonia, or bronchitis. The examiner diagnosed rule out (r/o) strep, pharyngitis, and tonsilitis. He was treated with antibiotics, cough syrup, and over-the-counter medication; and he was referred to an ENT for a tonsillectomy consultation. In September 1992. At that time, he was noted to have a peritonsillar abcess and cellulitis. He was treated with intramuscular injections of antibiotics, oral antibiotics, and saltwater gargles. He was told to follow-up with the clinic the following morning, or sooner if he developed difficulty swallowing or breathing. The Veteran was seen two days later for further evaluation, at which time he reported difficulty swallowing. The Veteran received additional intramuscular injections of antibiotics at that time. In November 1993, the Veteran was afforded a separation examination. At that time, the Veteran denied ear, nose, and throat trouble; asthma; shortness of breath; chronic cough; and any tumor, growth, cyst, or cancer. Further, the Veteran's mouth and throat, chest and lungs, and skin lymphatics were clinically normal upon physical examination at that time. There is no other indication from the separation examination report that the Veteran had any strep infection, respiratory issue, or other infection of his throat at the time of his separation from service, chronic or otherwise. At an April 1997 Reserve examination, the Veteran denied ear, nose, and throat trouble; asthma; shortness of breath; chronic cough; and any tumor, growth, cyst, or cancer on his report of medical history. Physical examinations of the mouth and throat, of the chest and lungs, and of skin lymphatics were clinically normal at that time. There is no indication from the physical examination report that the Veteran was noted to have any strep infection, respiratory or pulmonary disability, or other infection of the throat at that time, chronic or otherwise. In March 2014, a VA medical opinion was obtained regarding the Veteran's claim of entitlement to service connection for a strep infection (also claimed as a "lung disability"). At that time, the VA examiner opined that it was less likely as not that the Veteran had a current disability that was related to his in-service complaints of sore throat. In this regard, the examiner noted that the Veteran was documented to have experienced episodes of sore throat while he was in active service. However, the examiner noted that strep throat was the result of a bacterial infection in the throat and tonsils, which caused irritation and inflammation, resulting in a sudden and severe sore throat. However, the examiner noted that strep throat was a treatable condition, and there was no correlation between the Veteran's in-service episodes of sore throat and a current disability. In August 2019, the Veteran was afforded a VA examination in connection with his claims. At that time, based on a thorough review of the record and an in-person examination, a VA examiner determined that the Veteran did not have current diagnoses of a strep infection, pulmonary disability, or lymph node cancer. In so finding, the examiner noted that the Veteran had an acute strep infection that while in active service, to include hospitalization on two occasions, but that those infections had resolved without residual. Further, the examiner noted that the Veteran had a normal chest X-ray and pulmonary function test (PFT) results in August 2019. The examiner noted that while multiple positron emission tomography (PET) scans revealed some mild, equivocal uptake in cervical lymph nodes, there was no diagnosis of lymph node cancer made, and the treatment plan was noted to include surveillance. In November 2020, an addendum VA medical opinion was obtained. At that time, the examiner opined that it was at least as likely as not that the claimed disability was incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that the cause of the Veteran's in-service strep infection was the result of a bacterial infection. The examiner noted that strep bacteria are highly contagious and can be spread through airborne droplets when someone with the infection coughed or sneezed, through shared food or drink, or from picking up bacteria from a surface and transferring it to your nose, mouth, or eyes. The examiner further noted that the Veteran did not have a current diagnosis of a pulmonary condition, and did not have a current strep infection. The examiner further noted that a review of the medical records revealed only one entry pertaining to a strep infection since service. The examiner also opined that it was less likely as not that the Veteran had lymph node cancer that was incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that there was no diagnosis of record for chronic lymph node cancer. The examiner noted that objective examination of the Veteran had been normal, and while he had been treated for other forms of cancer (namely squamous cell carcinoma of the tongue, throat, and right pyriform), there was no evidence of a diagnosis of lymph node cancer. The Board finds that the March 2014, August 2019, and November 2020 VA medical opinions are adequate when read on conjunction with one another. In this regard, the examiners thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no objective evidence of record showing the Veteran to have current diagnoses of a strep infection, a pulmonary disability, or lymph node cancer. As such, the VA medical opinions are the most probative evidence of record. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a diagnosis of a strep infection, a pulmonary disability, or lymph node cancer as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide diagnoses in this case. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Veteran did have a diagnosis of acute strep throat at one time, that infection resolved without residual, and there is no indication of current diagnoses of a strep infection, pulmonary disability, or lymph node cancer during the pendency of the appeal, or proximate thereto. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for a strep infection, pulmonary disability, or lymph node cancer is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection Tongue Cancer, Tonsil Cancer, and Right Pyriform Cancer The Veteran has alleged that he has cancer of the tongue, tonsils, and right pyriform as a result of exposure to ionizing radiation sustained while performing his duties as an X-ray technician during active service. The Veteran's DD Form 214 shows that he had a military occupational specialty (MOS) of X-ray technician for a period of four years while in active service. As the Veteran has current diagnoses of radiogenic diseases, a dosage estimate regarding the Veteran's level of ionizing radiation exposure during service was obtained from the Department of the Navy. A review of the January 2014 dosage estimate shows that for a period from February 1, 1989, to March 1, 1991, the Veteran was estimated to have a radiation dose of 00.047 REM. However, as noted above, the Veteran was noted to have served in the capacity of an X-ray technician for a period of four years while in active service. As such, the dosage estimate received from the Department of the Navy in January 2014 is not sufficient as it does not adequately consider all potential exposure to ionizing radiation the Veteran may have had during service. All VA medical opinions obtained in support of this appeal subsequent to receipt of the Department of the Navy's January 2014 dosage estimate were based on the dosage estimate provided. As such, none of the examiners could have accounted for all possible exposure, as that does not appear to have been included in the January 2014 dosage estimate. Accordingly, a new dosage estimate must be obtained to accurately determine the Veteran's level of exposure to ionizing radiation while performing the duties of an X-ray technician for no less than four years while in active service. Then, additional medical opinions should be obtained to determine whether the Veteran's exposure to ionizing radiation during service was of a sufficient level to cause his current tongue, tonsil, and right pyriform cancers. The matters are REMANDED for the following action: 1. Undertake the appropriate development pursuant to 38 C.F.R. § 3.311 to obtain an accurate dose estimate for the Veteran's exposure to ionizing radiation during his active service, to specifically account for all four years the Veteran served in the capacity of an X-ray technician. 2. Once an ionizing radiation exposure dosage estimate that accurately accounts for the Veteran's four years of service as an X-ray technician has been obtained, the Veteran's claims file should be forwarded to an appropriate oncologist to provide an addendum opinion regarding the nature and etiology of the Veteran's tongue, tonsil, and right pyriform cancers. The claims file must be reviewed by the examiner, and that review should be noted in the report. Based on a thorough review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's tongue, tonsil, and/or right pyriform cancers are etiologically related to his in-service exposure to ionizing radiation while serving as an X-ray technician for a period of four years. A complete and detailed rationale for all opinions expressed must be provided. 3. Confirm that the development conducted comports with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.