Citation Nr: A22020988 Decision Date: 10/18/22 Archive Date: 10/18/22 DOCKET NO. 201009-114922 DATE: October 18, 2022 ORDER Service connection for residuals of esophageal cancer is granted. Service connection for renal cancer is granted. Service connection for throat cancer is granted. FINDINGS OF FACT 1. The Veteran's residuals of esophageal cancer are related to his active military service. 2. The Veteran's renal cancer is related to his active military service. 3. The Veteran's throat cancer is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of esophageal cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2022). 2. The criteria for service connection for renal cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2022). 3. The criteria for service connection for throat cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to December 1968. The initial rating decision addressing these issues was issued in May 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In August 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues on appeal most recently addressed in the May 2020 rating decision. In September 2020, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In his October 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 2 0.302(a). During the hearing, the Veteran waived the 90-day evidentiary period. 1. Service connection for residuals of esophageal cancer is granted. 2. Service connection for renal cancer is granted. 3. Service connection for throat cancer is granted. Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where lay evidence is competent, the Board must weigh the competent lay evidence against the other evidence of record in determining credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). However, the absence of corroborating records is an insufficient basis on which to find lay statements not credible. Id. at 1337. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Id. The Veteran's military occupational specialty (MOS) was firefighter. He testified that he also worked as a crash and rescue specialist. He stated that he was exposed to herbicide agents and "several intensely and research-based toxins that cause adverse health effects to human bodies, to include JP4 jet fuel and diesel fuel fires, fires of unknown material caused by enemy tracer-tipped ground fire, and aqueous film-forming foam (AFFF)." See December 2019 statement in support of claim. There is no question that the Veteran has the diagnoses for which service connection is sought. See November 2019 private treatment record (including a diagnosis of squamous cell carcinoma of the neck); November 2019 private treatment record (including diagnosis of renal cancer); November 2004 private treatment record (noting diagnosis of esophageal cancer); and August 2020 private treatment record (including a diagnosis of squamous cell carcinoma of the upper aerodigestive tract). In an April 2020 VA memorandum, exposure to herbicide agents was conceded based on the Veteran's duty in the Republic of Vietnam. A May 2020 VA respiratory conditions clinician conducted an Acceptable Clinical evidence (ACE) review of the record due to the Covid-19 pandemic and determined that the Veteran did not have or has never had a respiratory condition. The examiner also noted the Veteran's diagnosis of hypopharyngeal squamous cell carcinoma of epiglottis in October 2019, but confirmed that there was no diagnosis of a respiratory cancer or condition. In May 2020 correspondence (received by VA in August 2020), Dr. M.J.J. evaluated the Veteran for squamous cell carcinoma of the pharynx. After reviewing the Veteran's medical history, to include his service treatment records (STRs) and VA treatment records, he opined that it is more likely than not that the Veteran's cancer was caused by his exposure to dioxin and numerous other toxins during active duty service. In July 2020 correspondence (received by VA in August 2020), Dr. J.F.M. stated that the Veteran was evaluated by a genetic counselor due to his significant cancer history who determined that the Veteran did not meet further testing guidelines for genetic predisposition for his cancers due to a hereditary pattern. Dr. J.F.M. reviewed the Veteran's medical history and STRs and opined that it is "highly likely" that his recent squamous cell carcinoma of the head/neck was caused by his exposure to [d]ioxin, as well as numerous other toxins he was exposed to while acting as a firefighter, crash, (sic) and rescue specialist" during active duty service. In August 2022 correspondence (received following the October 2022 Board hearing), Dr. J.F.M. stated that the Veteran was exposed to not only toxic herbicide Agent Orange, but to toxins including JP4 jet fuel, diesel fire fuel, fires of unknown material caused by enemy tracer-tipped ground fire, and AFFF. He was also exposed to burning of human waste via burn pits. Given his history of numerous cancers, his diagnosis of papillary renal cell carcinoma is at least as likely as not "due to the aggregate of [the Veteran's] documented toxic exposures during the course of his time as a crash and rescue specialist and firefighter during active duty service. In subsequent correspondence in September 2022, Dr. J.F.M. emphasized that the Veteran's daily exposure to numerous toxic materials during his service in Vietnam contributed to his health issues. In August 2020 correspondence, another of the Veteran's private physician included a diagnosis of clinical stage T2 N2 squamous cell carcinoma involving the upper aerodigestive tract. He noted a significant cancer history that included a papillary renal cell carcinoma that was treated in March 2020 and esophageal cancer that was surgically treated in 2005. Dr. I.F.S. stated that she personally reviewed his medical history, including his STRs and VA treatment records, and opined that it is more likely that not that the Veteran's squamous cell carcinoma of the upper aerodigestive tract was caused by his exposure to dioxin and other toxins he encountered in his role as a crash and rescue specialist. As mentioned above, there is no question that the Veteran has diagnoses for the disabilities on which service connection is sought. Accordingly, the first element of service connection is met. In its September 2020 rating decision, the AOJ determined that the Veteran was exposed to Agent Orange during his military service and that a "nexus, or link, has been established between" his claimed issues and "an in-service event or injury." These are favorable findings that will not be disturbed. Based on these favorable findings that a link has been established between the claimed disabilities and the Veteran's service, the second and third elements of service connection have been met for each of the issues on appeal. (Continued on next page) In view of the totality of the evidence, the Board finds that the Veteran's residuals of esophageal cancer, renal cancer, and throat cancer are caused by his exposure to toxic agents during service. Based on the foregoing, service connection for such is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.