Citation Nr: 0812525 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-22 413 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cancer of the nasal pharynx. 2. Entitlement to service connection for otitis. 3. Entitlement to service connection for bilateral osteoradionecrosis, secondary to treatment for nasopharyngeal cancer. 4. Entitlement to service connection for dental problems, secondary to treatment for nasopharyngeal cancer. 5. Entitlement to service connection for headaches, to include as secondary to treatment for nasopharyngeal cancer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran had active military service from January 1979 to November 1986. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2003 rating decision. FINDINGS OF FACT 1. The evidence fails to show that cancer of the nasal pharynx was caused by the veteran's military service. 2. The evidence demonstrates that the veteran's otitis externa and otitis media is the result of treatment for a non-service connected disability, nasopharyngeal cancer. 3. The veteran's bilateral osteoradionecrosis was caused by treatment for a non-service connected disability, nasopharyngeal cancer. 4. The veteran's dental problems were caused by treatment for a non-service connected disability, nasopharyngeal cancer. 5. The evidence fails to link a headache disability to either the veteran's time in service or to a service- connected disability. CONCLUSIONS OF LAW 1. Criteria for service connection for nasopharyngeal cancer have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Criteria for service connection for otitis have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2007). 3. Criteria for service connection for bilateral osteoradionecrosis have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2007). 4. Criteria for service connection for dental problems have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2007). 5. Criteria for service connection for headaches have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). The veteran was discharged from service in November 1986, and he was diagnosed with nasopharyngeal cancer in mid-1991. The veteran also tested positive for the Epstein-Barr virus in 1991 when his doctors tested him for the disease immediately following his diagnosis of nasopharyngeal cancer. The veteran stated that when he was diagnosed with nasopharyngeal cancer in 1991 his physician asked him if he had ever traveled in the Middle East as the cancer was very rare in North America. He reported that the doctor told him that the cancer was so rare that the hospital had initially misdiagnosed the cancer as Oat Cell Cancer (and the veteran submitted a medical record from August 1991 showing the misdiagnosis). In the veteran's discharge summary following his treatment, it was noted that patients with nasopharyngeal cancer, especially from the Middle East, have a predisposition to having been exposed to the Epstein-Barr virus with high association of this virus. In October 1991 a VA consultation report noted that the veteran had served as a crew chief on helicopters and had been stationed throughout the Middle East, and it was noted that this fact may be very pertinent to his present condition (nasopharyngeal cancer). The veteran submitted medical studies that suggested a link between the Epstein-Barr virus and the onset of nasopharyngeal cancer, and indicated that there was a higher incidence of nasopharyngeal cancer among Southeast Asian and Northern African countries, than with Western countries. The veteran stated that he was stationed for roughly 40 days in Turkey while in the Navy, and he indicated that flew into Lebanon on several occasions (for which he was awarded the Navy Expeditionary Medal that was given for engagements in Lebanon between January and March 1984). These studies also indicated that a clear etiology for nasopharyngeal cancer was lacking and it was thought generally to be the result of both genetic susceptibility and environmental factors such as carcinogens and infection with the Epstein-Barr virus. Another study suggested that eating salt-preserved foods during early child could increase the risk of getting cancer. A higher incidence of nasopharyngeal cancer is also seen in people of Asian descent. The veteran also submitted a report from the Veteran's Administration in Australia which appears to allow a presumptive type of service connection when a veteran has a malignant neoplasm of the nasopharynx and was previously infected with the Epstein-Barr virus. However, no such similar provision exists under U.S. law. The veteran stated that he had the Epstein-Barr virus in service, but service medical records fail to document any specific diagnosis of, or treatment for, this illness. Service medical records do reflect that the veteran was treated in May 1985 with complaints of headaches, aching, ear congestion, and an inability to clear his ears, and he was diagnosed with sinusitis; and in 1986 the veteran had a non- pruritic rash which was diagnosed as pityriasis rosea. The veteran contends that he had sinus pain and headaches from the time he was discharged from service in 1986 through the diagnosis of cancer in 1991. The veteran also stated in a February 2003 letter that he began having headaches in 1987, which he initially attributed to changing climates from Virginia to Kansas City, but he reported that the headaches continued in 1988 and 1989 and he eventually sought medical treatment for them in 1990. The doctors treating the veteran for his cancer indicated that there was a link between the Epstein-Barr virus and nasopharyngeal cancer, and they found that the veteran indeed had both illnesses. The doctors also indicated that the Epstein-Barr virus was more prevalent in the Middle East. However, they did not specifically find that the veteran had contracted Epstein-Barr virus while in service. As such, the veteran's claim was remanded to determine whether he contracted the Epstein-Barr virus during his time in service; and, if so, whether it is as likely as not that the Epstein-Barr virus led to his nasopharyngeal cancer; or, more generally, whether the veteran's nasopharyngeal cancer was caused by his military service. In September 2007, the veteran underwent a VA examination. The examiner noted that he reviewed the veteran's claims file in conjunction with the examination. The examiner noted that he found no disease process consistent with mononucleosis in the veteran's claims file, although the veteran was seropositive for the Epstein-Barr virus. The examiner diagnosed the veteran with chronic otitis externa (bilateral), with chronic Eustachian tube dysfunction, with episodic otitis media, and with mild, chronic sphenoid sinusitis; and he opined that the chronic otitis externa, the chronic Eustachian tube dysfunction/otitis media were as likely as not due to the radiotherapy for his nasopharyngeal cancer. He indicated that he found no evidence to suggest that any of these conditions were the direct result of the veteran's time in service as they were all known sequelae of x-ray therapy. With regard to the veteran's nasopharyngeal cancer, the examiner indicated that 90 to 95 percent of the adult population in the U.S. was seropositive for the Epstein-Barr virus, and furthermore, the link between the presence of the Epstein-Barr virus and mononucleosis is much clearer than is the link between the Epstein-Barr virus and nasopharyngeal cancer. As such, the examiner declined to link the veteran's nasopharyngeal cancer to his time in service, indicating that to do so would have been speculative. While the veteran believes that his nasopharyngeal cancer was the result of his contracting the Epstein-Barr virus while he was in service in the Middle East, he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, the veteran's opinion is insufficient to provide the requisite nexus between his nasopharyngeal cancer and his time in service. The veteran has also submitted a number of medical articles in support of his theory of entitlement. The Board notes that, with regard to medical treatise evidence, the United States Court of Appeals for Veterans Claims (the Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the appellant is not accompanied by the opinion of any medical expert, and while it suggests that there might be some link between the Epstein-Barr virus and nasopharyngeal cancer, there is no indication that this was the cause of the veteran developing nasopharyngeal cancer. Additionally, the examiner who provided the medical opinion in September 2007 reviewed the veteran's claims file in conjunction with the examination, and therefore saw the treatise evidence, but he nevertheless still concluded that it was too speculative to relate the veteran's nasopharyngeal cancer to his time in service. As such, the Board concludes that this information alone is insufficient to establish the required medical nexus opinion. The veteran's claims file is void a medical opinion of record indicating that it is as likely as not that the veteran developed nasopharyngeal cancer as a result of his time in service. While the veteran has advanced possible causes for the cancer, the balance of the evidence still fails to make it at least as likely as not that the cancer was a product of his time in service. As such, the criteria for service connection have not been met, and the veteran's claim of entitlement to service connection for nasopharyngeal cancer is denied. The veteran has also filed claims for service connection of bilateral osteoradionecrosis, for dental problems, and for headaches, to include as secondary to treatment for nasopharyngeal cancer. With regard to osteoradionecrosis, a private doctor, Dr. Podnos wrote a letter in December 2002 indicating that the veteran's osteoradionecrosis was secondary to the radiation treatment he received for his nasopharyngeal cancer. The evidence of record does not otherwise contradict this statement; and, as service connection for nasopharyngeal cancer has been denied, it follows that service connection for a disability that is secondary to it must also be denied. Accordingly, the veteran's claim of entitlement to service connection for osteoradionecrosis is denied. With regard to dental problems, a private doctor, Dr. Mendenhall, wrote a letter in October 2003 indicating that as a result of the radiation treatment for his nasopharyngeal cancer, the veteran developed significant tooth bone damage and loss. The evidence of record does not otherwise contradict this statement; and, as service connection for nasopharyngeal cancer has been denied it follows that service connection for a disability that is secondary to it must also be denied. Accordingly, the veteran's claim of entitlement to service connection for dental problems is denied. With regard to headaches, the veteran contends that he had sinus pain and headaches from the time he was discharged from service in 1986 through the diagnosis of cancer in 1991. The veteran also stated in a February 2003 letter that he began having headaches in 1987, which he initially attributed to changing climates from Virginia to Kansas City, but he reported that the headaches continued in 1988 and 1989 and he eventually sought medical treatment for them in 1990. Service medical records do reflect that the veteran was treated several times in service for headaches. In February 1979 the veteran sought treatment for a headache. In May 1983, the veteran was noted to have had frontal headaches, and he was assessed with a viral syndrome. In July 1985, the veteran again had headaches with congestion and was diagnosed with sinusitis. In October 1985, the veteran had headaches and was assessed with a viral syndrome. It appears that the headaches in service were associated with the veteran's sinusitis, as headaches were only listed as a symptom when sinusitis was diagnosed or when a viral syndrome was diagnosed. On his original claim, the veteran indicated that his headaches had begun in January 1987, following his discharge from service in 1986. At a VA examination in October 1991 it was noted that in January 1990, the veteran developed severe headaches with nausea, vomiting, and weight loss. The symptoms persisted until May when the veteran sought medical treatment and was diagnosed with nasopharyngeal cancer. No treatment records have been presented showing treatment for headaches since the early 1990s. The veteran was provided with a VA examination to determine the etiology of his headaches; and in September 2007 a VA examiner indicated that he did not think the veteran's headaches were sinogenic as the veteran's sinusitis was very mild. The examiner also failed to relate the veteran's headaches to his time in service. As such, the veteran's claims file is void of a medical opinion of record which relates the veteran's headaches to his time in service; and the veteran himself indicated that the headaches began after he was discharged from service. As such, the criteria for service connection for headaches have not been met, and the veteran's claim is therefore denied. Regarding "otitis," service medical records reflect that the veteran was treated in 1981 for otitis media. He was treated with medication, and there was no additional treatment sought for otitis media during the veteran's additional five years in service. In October 1990, the veteran was diagnosed with otitis media, and a CT of the veteran's sinus in January 1991 demonstrated left mastoiditis with left otitis media. More recently, in December 2002, the veteran's private ear, nose, and throat doctor, Dr. Podnos indicated that the veteran had potential for chronic otitis externa, and the veteran's representative has suggested the veteran has continued relevant treatment. Based on this information, the veteran was provided with a VA examination. The examiner reviewed the veteran's claims file; and, after examining the veteran, the examiner diagnosed the veteran with chronic otitis externa and chronic Eustachian tube dysfunction with secondary otitis media. However, the examiner opined that both the otitis externa and the Eustachian tube dysfunction were the result of the veteran's treatments for nasopharyngeal cancer, which was determined not to be the result of the veteran's time in service. The examiner explained that he did not have evidence that convinced him that the veteran's chronic otitis externa or chronic otitis media were connected to his time in service as they were known sequelae of radiation therapy. While the veteran believes that his otitis is related to his time in service, he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, his is not competent to provide the requisite nexus between his otitis and his time in service. Accordingly, the criteria for service connection for otitis media and otitis externa have not been met, and the veteran's claim is therefore denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was completed by a letter dated in March 2007, which informed the veteran of all four elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the veteran was not given prior to the first adjudication of the claim, the veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the veteran's claim was readjudicated following completion of the notice requirements. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). VA and private treatment records have been obtained, as have the veteran's service medical records, and some treatise evidence regarding nasopharyngeal cancer and the Epstein-Barr virus was associated with the veteran's claims file. The veteran was also provided with a VA examination (the report of which has been associated with the claims file). Additionally, the veteran was offered the opportunity to testify at a hearing before the Board, but he declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the veteran's claims, no disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER Service connection for nasopharyngeal cancer is denied. Service connection for otitis is denied. Service connection for bilateral osteoradionecrosis, secondary to treatment for nasopharyngeal cancer, is denied. Service connection for dental problems, secondary to treatment for nasopharyngeal cancer, is denied. Service connection for headaches, to include as secondary to treatment for nasopharyngeal cancer, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs