Citation Nr: 0924868	
Decision Date: 07/02/09    Archive Date: 07/14/09

DOCKET NO.  07-02 670	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUES

1.  Entitlement to service connection for throat cancer.

2.  Entitlement to service connection for bilateral hearing 
loss.

3.  Entitlement to service connection for sprained right 
ankle.


REPRESENTATION

Appellant represented by:	Oklahoma Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)



ATTORNEY FOR THE BOARD

B.W. Hennings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1966 to February 
1970.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a June 2006 decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Muskogee, 
Oklahoma.  

The Veteran presented testimony at a Travel Board Hearing 
chaired by the undersigned acting Veterans Law Judge in 
November 2008.  A transcript of the hearing is associated 
with the Veteran's claims folder.

The Veteran submitted a statement to the Board in June 2009.  
The Board notes that this evidence was sent to the Board with 
no waiver of consideration of such evidence by the RO.  In 
Disabled American Veterans v. Secretary of Veterans Affairs, 
327 F.3d 1339 (Fed. Cir. 2003), the Federal Circuit held that 
the Board lacks authority to review evidence in the first 
instance unless the claimant waives right to initial review 
of evidence by the AOJ.  The Board finds, however, that the 
argument submitted is cumulative and substantially identical 
to the evidence previously of record and already considered 
by the RO.  

In addition, the Veteran has not provided any new facts, but 
merely contentions in his letter, which by design was 
supposed to come to the Board, as it was in response to a 
medical opinion the Board solicited directly from the 
Veterans Health Administration.  The contentions regarding 
the Veteran's cancer are identical to those advanced by the 
Veteran previously in various submissions and during his 
hearing.  The Board finds no prejudice will result by not 
remanding the remaining issue on appeal to the RO for 
consideration of this evidence, particularly because the 
statement was designed as a supplement to the evidence 
already before the Board to be considered before a rendering 
of its decision.  

The Board does note, however, that the Veteran seems to be 
making claims for service connection for asbestosis, COPD, 
shoulder disorder, and hip disorders, and unemployability.  
These issues, however, are not currently developed or 
certified for appellate review.  Accordingly, they are 
REFERRED to the RO (via the AMC) for appropriate 
consideration.  


FINDINGS OF FACT

1.  At the November 2008 personal hearing before the Board, 
the Veteran withdrew his appeal for service connection for 
bilateral hearing loss.  

2.  At the November 2008 personal hearing before the Board, 
the Veteran withdrew his appeal for service connection for a 
sprained right ankle.  

3.  The Veteran's throat cancer is not etiologically related 
to service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal of 
the issue of entitlement to service connection for bilateral 
hearing loss have been met.  38 U.S.C.A. 
§ 7105(b)(2) (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.202, 
20.204 (2008).

2.  The criteria for withdrawal of a substantive appeal of 
the issue of entitlement to service connection for a sprained 
right ankle have been met.  38 U.S.C.A. § 7105(b)(2) (West 
2002 & Supp. 2008); 38 C.F.R. §§ 20.202, 20.204 (2008).

3.  Throat cancer was not incurred in, aggravated by or 
otherwise related to service.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. §§ 3.303, 3.304 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Appeals

A Substantive Appeal may be withdrawn in writing at any time 
before the Board promulgates a decision.  38 C.F.R. §§ 
20.202, 20.204(b) (2008).  Withdrawal may be made by the 
appellant or by his authorized representative, except that a 
representative may not withdraw a Substantive Appeal filed by 
the appellant personally without the express written consent 
of the appellant.  38 C.F.R. 
§ 20.204(c).

In January 2007, the Veteran submitted a VA Form 9 perfecting 
his appeals as to the issues of entitlement to service 
connection for throat cancer, bilateral hearing loss, and a 
sprained right ankle.  

In November 2008, a Travel Board hearing was held at the RO 
before the undersigned acting Veterans Law Judge who was 
designated by the Chairman to conduct that hearing, pursuant 
to 38 U.S.C.A. § 7107 (West 2002).  The transcript of the 
hearing shows that the appellant withdrew the appeal for the 
claims for service connection for bilateral hearing loss and 
service connection for a sprained right ankle.  The oral 
statement, when transcribed, became a "writing." Tomlin v. 
Brown, 5 Vet. App. 355 (1993).  Therefore, the Board finds 
that the appeals for these claims have been withdrawn.  38 
C.F.R. § 20.204.  

As the appellant has withdrawn his appeals as to the issues 
of entitlement to service connection for bilateral hearing 
loss and entitlement to service connection for a sprained 
right ankle, there remain no allegations of errors of fact or 
law for appellate consideration concerning these issues.  The 
Board therefore has no jurisdiction to review the issues.  
Accordingly, the issues of entitlement to service connection 
for bilateral hearing loss and entitlement to service 
connection for a sprained right ankle are dismissed.


Service Connection Legal Criteria

Applicable law provides that service connection will be 
granted if it is shown that the Veteran suffers from 
disability resulting from an injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in active military service.  38 U.S.C.A. § 1110; 38 
C.F.R. § 3.303.  That an injury occurred in service alone is 
not enough; there must be chronic disability resulting from 
that injury.  If there is no showing of a resulting chronic 
condition during service, then a showing of continuity of 
symptomatology after service is required to support a finding 
of chronicity.  
38 C.F.R. § 3.303(b).  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).

Certain chronic disabilities are presumed to have been 
incurred in service if manifest to a compensable degree 
within one year of discharge from service.  
38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 
3.309 (2008).

There is no specific statutory guidance with regard to 
asbestos-related claims, nor has the Secretary promulgated 
any regulations in regard to such claims; however, the VA 
Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, 
Chapter 2, Section C (Manual), provides information 
concerning claims for service connection for disabilities 
resulting asbestos exposure.  The date of this amended 
material is December 13, 2005.  The United States Court of 
Appeals for Veterans Claims (Court) has held that VA must 
analyze an appellant's claim for service connection for 
asbestosis or asbestos-related disabilities under the 
appropriate administrative guidelines.  Ennis v. Brown, 
4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 
(1993).  

The Manual defines asbestos as a fibrous form of silicate 
mineral of varied chemical composition and physical 
configuration, derived from serpentine and amphibole ore 
bodies.  M21-1MR IV.ii.2.C.9.a.  Common materials that may 
contain asbestos are steam pipes for heating units and 
boilers, ceiling tiles, roofing shingles, wallboard, 
fire-proofing materials, and thermal insulation.  Id.  Some 
of the major occupations involving exposure to asbestos 
include mining, milling, shipyard work, insulation work, 
demolition of old buildings, carpentry and construction, 
manufacture and servicing of friction products (such as 
clutch facings and brake linings), and manufacture and 
installation of products such as roofing and flooring 
materials, asbestos cement sheet and pipe products, and 
military equipment.  M21-1MR IV.ii.2.C.9.f.   

Asbestos fiber masses have a tendency to break easily into 
tiny dust particles that can float in the air, stick to 
clothes, and may be inhaled or swallowed.  Inhalation of 
asbestos fibers can produce fibrosis (the most commonly 
occurring of which is interstitial pulmonary fibrosis, or 
asbestosis), tumors, pleural effusions and fibrosis, pleural 
plaques, mesotheliomas of pleura and peritoneum, and cancers 
of the lung, bronchus, gastrointestinal tract, larynx, 
pharynx, and urogenital system (except the prostate).  
M21-1MR IV.ii.2.C.9.b.   

The latent period for the development of disease due to 
exposure to asbestos ranges from 10 to 45 or more years 
(between first exposure and the development of disease).  
M21-1MR IV.ii.2.C.9.d.  The adjudication of a claim for 
service connection for a disability resulting from asbestos 
exposure should include a determination as to whether or 
not:  (1)  service records demonstrate the Veteran was 
exposed to asbestos during service; (2)  development has been 
accomplished sufficient to determine whether or not the 
Veteran was exposed to asbestos either before or after 
service; and (3)  a relationship exists between exposure to 
asbestos and the claimed disease in light of the latency and 
exposure factors.  M21-1MR IV.ii.2.C.9.h.   

The relevant factors discussed in the manual must be 
considered and addressed by the Board in assessing the 
evidence regarding an asbestos related claim.  See VAOPGCPREC 
4-2000.

Service Connection for Throat Cancer

In this case, the Veteran has claimed service connection for 
throat cancer, contending that the squamous cell carcinoma of 
the cervical lymph node that was diagnosed in 2005 was due to 
his asbestos exposure in service.  The Veteran contends that 
his throat cancer originated in the upper respiratory area.  
He also contends that his cancer was not in the lymph nodes 
but in the jugular.  

The Veteran had active duty service from May 1966 to February 
1970, including shipboard service where he was exposed to 
asbestos.  During service, the Veteran was exposed to 
asbestos while aboard a refrigeration ship (USS Alstede AF 
48), where he served as a ships cook or culinary specialist 
from January 9, 1967 to February 16, 1970.  The Veteran has 
credibly reported and testified that water pipes and steam 
pipes in the USS Alstede were covered with material 
containing asbestos.  He has denied any other history of 
asbestos exposure.  Based on this evidence, the Board finds 
that the Veteran was exposed to asbestos in service.
        
The Veteran has submitted various medical articles that 
address risk factors for a pathogenesis of head and neck 
cancer; coding for head and neck cancer, that includes that 
the most common causes of head and neck cancer are the 
excessive use of tobacco, including smokeless tobacco, and 
alcohol, and that other risk factors include sun exposure to 
lips, radiation to head and neck, nickel dust inhalation, and 
exposure to asbestos; that the etiology of head and neck 
squamous cell carcinoma includes environmental exposures to 
paint fumes, plastic byproducts, wood dust, asbestos, and 
gasoline fumes; and that exposure to airborne particles of 
asbestos, especially in the workplace, is related to cancer 
of the larynx, and that symptoms that are common to several 
head and neck cancer sites include a lump or sore that does 
not heal, among others; that asbestos exposure "may" cause 
cancer of the throat (larynx and otolarynx); and that 
symptoms of asbestos-related diseases may not become apparent 
for many decades after exposure. 
        
VA treatment records reflect that the Veteran was diagnosed 
with squamous cell carcinoma of the cervical lymph node that 
was discovered and biopsied in April 2005, with no primary 
source identified.  The Veteran subsequently underwent right 
radical neck dissection in May 2005, with subsequent 
radiation treatments until October 2005.  The Veteran had 
been a chronic tobacco smoker for about 35 to 40 years before 
quitting in 2005, and he chewed tobacco.  Follow up 
examination with a VA physician in January 2008 was negative, 
with no evidence of reoccurrence noted. 
        
A March 2008 VA examination revealed the "v" shaped 
surgical scar with loss of tissue on the right side of the 
neck due to right radical neck dissection.  The diagnosis was 
right radical neck dissection and radiation treatment for 
squamous cell carcinoma of the cervical lymph node, in stable 
condition with no recurrence (inactive).  The VA physician 
offered the opinion that the squamous cell carcinoma of the 
cervical lymph node on the right side of the neck was not 
likely due to exposure to asbestos in service.  The basis for 
the opinion was that the Veteran did not have lung pathology 
or lung disease, and asbestos exposure does not cause 
squamous cell carcinoma of the lymph node. 
        
A May 9, 2008 VA outpatient note by a treating VA physician 
notes that the March 2008 VA examiner correctly stated that 
asbestos does not cause lymph node cancer, but the Veteran 
had lymph node metastases of squamous cell type that had to 
have originated in the upper respiratory/oral/laryngeal 
mucosa.  This VA physician thought that this might change the 
Veteran's eligibility for compensation (i.e., service 
connection).  
        
In a September 2008 letter, D.S., M.D., noted the Veteran's 
history of asbestos exposure in service.  Chest x-rays and 
pulmonary function testing was performed.  Dr. D.S. assessed 
that, within a reasonable degree of medical probability, the 
Veteran had asbestosis, COPD, and emphysema.
        
At a personal hearing in November 2008, the Veteran testified 
that he was exposed to asbestos while aboard ship in the 
Navy; that he experienced coughing and symptoms in the throat 
and neck area after service; that a VA doctor who diagnosed 
him with asbestosis, COPD, and emphysema also told him that 
he could not relate the cancer to the in-service asbestos 
exposure, but these diseases were of airborne origin, and the 
cancer had an unknown primary site; and medical articles that 
he submitted say that the three main causes of squamous cell 
carcinoma are tobacco, alcohol, and asbestos, and that 
asbestos-related diseases show no sign of illness sometimes 
up to 10 to 40 years.  

In February 2009, the Board sent the Veteran's file to a 
specialist in the field of oncology for a medical opinion.  
The VHA oncologist, who reviewed the Veteran's entire claims 
file and assorted medical records, provided an opinion report 
in March 2009.  The VA reviewing oncologist noted the 
Veteran's military history and exposure to asbestos onboard 
ships while in service.  The VHA oncologist also noted that 
the Veteran was a heavy smoker of cigarettes, averaging about 
one to one and a half packs of cigarettes daily for about 
fifty years.  The VHA oncologist observed that the Veteran 
appeared relatively healthy until March of 2005, when he 
noted some pain in the right side of the neck.  The Veteran 
underwent procedures and a surgeon who performed his neck 
exploration indicated that the right radical neck dissection 
revealed a tumor mass adjacent to the jugular vein with 
metastatic moderately differentiated squamous cell carcinoma, 
but the vein was not involved.  The Veteran was determined to 
have metastatic squamous cell carcinoma to the right of the 
neck of unknown primary site.  The VHA oncologist noted that 
chest x-rays showed no malignancy in the lungs. 

The March 2009 VHA reviewing oncologist indicated that, after 
reviewing all the records, including the September 2008 
letter from Dr. D.S., he came to the conclusion that the 
Veteran had a squamous cell carcinoma metastatic to the right 
side of the neck of unknown primary site.  The VHA oncologist 
noted the importance of finding a primary site in the upper 
airways when dealing with a lesion in the neck.  However, 
there was no evidence of a primary lesion.  Next, looking to 
the lung, the chest x-ray did not show any malignancy at that 
time.  The only abnormality reported by the radiologist in 
2008 was some scarring tissue in the lungs, meaning there was 
no cancer and no evidence of malignant changes.  Regarding 
the concern about the jugular vein, the VHA oncologist wrote 
that this was a result of the report of the surgeon saying 
that the tumor was close to the jugular vein, but was not 
attached to the vein.  

The March 2009 VHA reviewing oncologist wrote that, if the 
Veteran would have had cancer of lung which metastasized to 
the neck, with a history of exposure to asbestos in the past, 
then the strong possibility would have been that the primary 
site was in the lung.  He opined that this was not the case 
because five years after the initial finding, the chest x-ray 
still did not show cancer.  The Veteran has reported heavy 
exposure to tobacco for more than 50 years.  The VHA 
physician opined that the neoplastic process that the Veteran 
developed, that of squamous cell carcinoma metastatic to the 
right side of the neck of unknown primary site, was not 
related to exposure to asbestos.  The VHA oncologist 
identified exposure to tobacco as the most likely possibility 
as the cause of cancer because the primary site as likely as 
not is located in the upper airways, like the base of the 
tongue, nasopharynx, etc.  The VHA oncologist also opined 
that the post-operative radiotherapy the Veteran received as 
likely as not has suppressed the primary site as well.

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  See Masors 
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 
Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).  Equal weight is not given to each piece of 
evidence contained in the record; every item of evidence does 
not have the same probative value. 

In this case the Board finds that the Veteran was exposed to 
asbestos in service.  The Veteran later developed cancer.  
The question that must be answered is whether or not the 
Veteran's cancer was caused by his military service, to 
include as due to the established asbestos exposure in 
service.  

Although the Veteran contends that his throat cancer was due 
to his asbestos exposure in service, and he has provided a 
detailed rationale for why, where the determinative issue 
involves medical causation or a medical diagnosis, there must 
be competent medical evidence to the effect that the claim is 
plausible; lay assertions of medical status do not constitute 
competent medical evidence.  Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992). 

The competent evidence of record weighs against the Veteran's 
claim for service connection for throat cancer.  The Board 
acknowledges that the Veteran has private medical diagnoses 
of asbestosis, COPD, and emphysema.  However, service 
connection for those disabilities is not currently before the 
Board.  Although there was some disagreement between the 
March and May 2008 VA physician's regarding the rationale 
that the Veteran's exposure to asbestos in service did not 
cause his cancer, neither examiner opined the opposite, that 
is, that the asbestos exposure in service did cause his 
cancer.  In fact, no VA examiner or any other medical 
professional has linked the Veteran's throat cancer to his 
military service, either due to asbestos or on a direct 
basis.  

There is no evidence that the Veteran developed throat cancer 
in service or within a year of discharge from service.  In 
addition, there is no medical or lay evidence showing 
treatment for the condition since discharge from service 
until the present.  Such evidence weighs against a finding of 
continuity of symptomatology after service.  In addition, the 
evidence shows that the cancer was not diagnosed after 
service until 2005.  There is no medical opinion linking the 
Veteran's throat cancer with the Veteran's military service, 
including as due to asbestos exposure.  

Not only is there no opinion in favor of the Veteran, the 
medical opinions of record tend to weigh against the Veteran, 
including the most recent VHA oncology opinion in March 2009.  
For the Board to conclude that the appellant's throat cancer 
is related to during military service, including as due to 
asbestos exposure in these circumstances would be 
speculation, and the law provides that service connection may 
not be based on resort to speculation or remote possibility.  
38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1992).  
Accordingly, the Board concludes that the preponderance of 
the evidence is against this claim.  As the preponderance of 
the evidence is against the claim, the benefit of the doubt 
doctrine is not applicable, and the claim for service 
connection for throat cancer must be denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Formerly, 
the elements of proper notice included informing the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; and (3) that the claimant is expected to provide.  
Section 3.159 was amended, effective May 30, 2008 as to 
applications for benefits pending before VA or filed 
thereafter, to eliminate the requirement that VA will request 
the claimant to provide any evidence in the claimant's 
possession that pertains to the claim.  73 Fed. Reg. 23353 
(April 30, 2008).

Notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see 
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  The 
notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a "service 
connection" claim, defined to include:  (1) Veteran status; 
(2) existence of a disability; (3) a connection between the 
Veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  See 
Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In this case, the Veteran was notified of the respective 
duties of the claimant and of VA, as well as of the evidence 
needed to substantiate his claims for service connection by a 
letter in February 2006, before the adverse rating decision 
that is the subject of this appeal.  In an April 2006 letter 
the Veteran was given the specific notice required by 
Dingess, supra.  In the present appeal, because the service 
connection claim is being denied, and no effective date or 
rating percentage will be assigned, the Board finds that 
there can be no possibility of any prejudice to the appellant 
under the holding in Dingess, supra.  

With respect to VA's duty to assist the Veteran, the RO has 
obtained the Veteran's service treatment records and VA 
medical records.  The Veteran has also been provided VA 
medical examinations, with opinions, including a specialist 
opinion.  The record also contains private medical records.  
The Veteran has submitted various articles and medical 
treatise information.  The Veteran testified before the 
undersigned.  The Veteran has been accorded ample opportunity 
to present evidence and argument in support of the appeal.  
Neither the Veteran nor his representative has indicated that 
there are any additional obtainable pertinent records to 
support the Veteran's claim.  

In sum, the Board is satisfied that the originating agency 
properly processed the Veteran's claim after providing the 
required notice and that any procedural errors in the 
development and consideration of the claim by the originating 
agency were insignificant and non-prejudicial to the 
Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  


ORDER

The appeal for service connection for bilateral hearing loss 
is dismissed.

The appeal for service connection for a sprained right ankle 
is dismissed.

Service connection for throat cancer is denied.


____________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs