Citation Nr: 0308550 Decision Date: 05/06/03 Archive Date: 05/15/03 DOCKET NO. 96-36 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a squamous cell carcinoma at the base of the tongue. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from January 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1994 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The veteran had a personal hearing at the RO in October 1997. A transcript of the hearing has been associated with the claims file. This case has previously come before the Board. In November 2000, the Board remanded to the matter to the RO for further development. That development having been completed to the extent possible, the Board will proceed with adjudication of the claim. FINDING OF FACT A squamous cell carcinoma at the base of the tongue is attributable to service. CONCLUSION OF LAW A squamous cell carcinoma at the base of the tongue was incurred as a result of active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The December 1966 service entrance examination shows that the mouth and throat were normal. The August 1969 separation examination shows that his mouth and throat were normal. By letter dated in June1995, the veteran's private physician, F. H., M.D., stated that the veteran had been diagnosed with a squamous cell carcinoma at the base of the tongue in 1989. He reported that cancer at the base of the tongue, as well as of the larynx, was included among a family of cancers often referred to as cancers of the head and neck region. He reported that tobacco, alcohol, viral infections, asbestos, and general respiratory pollutants predisposed both areas to similar malignancies. The letter notes that the veteran did not use tobacco products or alcohol, and that his family history was negative for malignancies of the respiratory tract. He stated that the veteran worked as an accountant and did not experience any excessive environmental exposure, such as asbestos or other pollutants that may predispose him to cancers of the head or neck, or respiratory tract. The veteran's dental hygiene was noted to be excellent. Dr. F. H. stated that in view of the above facts, it was difficult to explain why the veteran had developed the squamous cell carcinoma, noting that the veteran had been exposed to Agent Orange exposure during service. His indirect conclusion was that there was a strong possibility that exposure to Agent Orange precipitated the malignancy. He stated that from an oncology viewpoint, cancers of the larynx were similar in cell type and predisposing factors to all cancer that involved the oral cavity, including those cancers at the base of the tongue. He noted that squamous cell cancer was the primary cell type of malignancies that involved the larynx and the base of the tongue, as these organs were in extreme proximity and were exposed to the same carcinogenic processes. He concluded that in view of the fact that the veteran was not exposed to any pollutants or carcinogens other than herbicides of Agent Orange, the veteran's cancer of the base of the tongue was associated with exposure to Agent Orange. In a June 1995 letter, the veteran's private physician, R. C., M.D., stated that he had been treating the veteran since 1989. He reported that the veteran had no known risk factors for development of squamous cell carcinoma other than exposure to Agent Orange. He opined that that if there were an association between exposure to Agent Orange and the development of cancer in the respiratory system, development of cancer at the base of the tongue could just as easily have occurred and would have the same relationship to the herbicide. By letter dated in September 1995, the veteran's private physician, Dr. D. A., M.D., noted the veteran's history of exposure to Agent Orange during service in Vietnam. He reported that the veteran had no associated risk factors as usually seen in similar individuals, such as chronic alcohol abuse or a history of cigarette tobacco use. He conveyed that there was a definitive causal association between malignant processes with exposure to herbicides, as documented in the relevant medical literature. He stated that there was difficulty in correlating tumor sites with exposure to the herbicides. The letter notes that there was a growing list of sites associated with malignancy and exposure. Dr. D. A. related that based on pertinent medical literature, dioxin had a direct effect on human tonsilar lymphocyte activity, suggesting that low density B-cells were sensitive cellular targets. He concluded that, based on the literature, there was support for a finding that lymphocytes were associated with tumor. He stated that although the veteran's tumor was not on the tonsilar area, but rather on the base of the tongue, there was lymphoid tissue in present in that area that would typically be compatible with the lymphoid tissue in the tonsila fossa. He opined that it was reasonable to conclude that veteran's current neoplasm may well be associated with herbicide exposure, based on the high incidence of other neoplasms in the respiratory tract, which he noted to be evidence that herbicide dioxins had produced neoplasm changes in the tonsila lymphocytes. He noted that there were no other causative factors that would be associated with the etiology for a neoplasm in this area. On VA oncology examination in May 1999, the relevant impression was several symptoms related to his head and neck cancer and associated treatment. The examiner stated that the question of whether the cancer was related to Agent Orange exposure during service could not be answered by an oncologist. He added that cancer of the head and neck region was most often found in individuals who smoked. He noted that the veteran did not have a history of smoking. He stated that head and neck cancer was nevertheless present in people who did not smoke. He stated that whether Agent Orange was an etiologic cause of cancer could only be determined by good epidemiological studies, of which he was not aware. On VA examination in August 1999, the relevant diagnosis was status post squamous cell carcinoma on base of tongue followed by left dissection and dissection of lymphatic tissue on the left side of the neck followed by irradiation therapy for six weeks. The examiner opined that whether the squamous cell carcinoma was related to service required an investigation by an oncologist. Criteria Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VCAA There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The new law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The Act and implementing regulations eliminate the concept of a well- grounded claim, redefine the obligations of VA with respect to the duty to assist, and supersede the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). First, VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The record shows that the veteran was notified in the December 1994 rating decision of the reasons and bases for the denial of his claim. He was further notified of this information in the June 1996 statement of the case and the May 1998 and August 2002 supplemental statements of the case. The Board concludes that the discussions in the December 1994 rating decision and in the statement and supplemental statements of the case, which were all sent to the veteran, informed him of the information and evidence needed to substantiate the claim. These actions satisfied VA's notification requirements. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. U.S.C.A. §§ 5102, 5103. The veteran has not identified any available unobtained evidence that might aid his claim. The veteran was afforded an opportunity to present evidence and argument in support of his claim. In this case, the Board finds that VA has done everything reasonably possible to assist the veteran. The Board notes that any defect in VA's duty to notify and assist the veteran is rendered moot, as the claim is herein granted. Analysis The veteran claims that a squamous cell carcinoma at the base of his tongue is related to service. Specifically, he asserts that the squamous cell carcinoma is a result of exposure to Agent Orange exposure during service in Vietnam. Initially, the Board notes the veteran had service in Vietnam. However, squamous cell carcinoma is not a presumptive disease listed at 38 C.F.R. § 3.309(e). Therefore, the issue in this case is not one of presumptive service connection, but instead one of direct service connection. The issue of whether a squamous cell carcinoma at the base of the tongue is related to service requires competent evidence. The veteran is not a medical professional and his statements do not constitute competent medical evidence. Generally, lay persons are not competent to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The Board finds that the May 1999 and August 1999 VA examination reports are of little, if any, probative value. Neither examiner reviewed the veteran's C-file. More importantly, neither examiner provided an opinion as to whether a squamous cell carcinoma at the base of the veteran's tongue is related to service. It is undisputed that the veteran had no known risk factors other than exposure to Agent Orange in association with the squamous cell carcinoma. Dr. R. C. stated that a squamous cell carcinoma at the base of the tongue would have the same relationship to herbicide as cancer in the respiratory system. Dr. D. A. stated that there was a basis for the opinion that the veteran's current neoplasm may be associated with exposure to herbicides. Dr. F. H. specifically stated that the veteran's squamous cell carcinoma at the base of the tongue was associated with exposure to Agent Orange. Each doctor provided a reasoned opinion for the relationship. This constitutes positive evidence. Against the positive evidence, there are two VA opinions to the effect that they are not competent to render an opinion. This does not constitute negative evidence. In light of the provisions of 38 C.F.R. § 3.303(d), the Board has been presented with a post service diagnosis and evidence establishing that the disease is due to service. The Board finds the evidence is in favor of the claim and thus, the appeal is granted. The Board further notes that presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. ORDER Service connection for a squamous cell carcinoma at the base of the tongue is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.