Citation Nr: 1123097	
Decision Date: 06/16/11    Archive Date: 06/28/11

DOCKET NO.  09-40 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for cancer of the tonsils.

2.  Entitlement to service connection for cancer of the lymph nodes.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to June 1972.  The Veteran also had a subsequent period of unverified service with a reserve component.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Board notes that the Veteran's September 2008 notice of disagreement to the August 2008 rating decision also included the RO's denial of his claims of service connection for bilateral hearing loss and a cervical spine disability.  However, in April 2009 and September 2009 rating decisions, the RO thereafter granted service connection for these disorders.  Therefore, these issues are no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue).

As reflected on the title page, the Board has characterized the cancer claims as two separate issues.  This is so because of the distinct diagnoses and different evidence concerning each the tonsils and the lymph nodes.  

In March 2011, the Veteran filed with the Board, in a timely manner, additional pertinent evidence in support of his appeal along with a waiver of RO review of that evidence.  Therefore, the Board may consider this evidence when adjudicating his claim without first having to remand the appeal for review by the RO.  See 38 C.F.R. § 20.1304(c) (2010).  


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era.

2.  The preponderance of the competent and credible evidence is against a finding that any current cancer of the tonsils, diagnosed as squamous cell carcinoma, is related to service.

3.  The preponderance of the competent and credible evidence is against a finding that any current cancer of the lymph nodes, diagnosed as metastic squamous cell carcinoma, is related to service.


CONCLUSIONS OF LAW

1.  Cancer of the tonsils was not incurred in or aggravated by military service nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010).

2.  Cancer of the lymph nodes was not incurred in or aggravated by military service nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The claimant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

Next, the Board finds that a letter dated in February 2008, prior to the August 2008 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's post-service records from the Mayo Clinic and Midelfort Clinic as well as statements in support of his claim from James B. Miettunen, M.D., Clayton T. Cowl, M.D., and Harold J. Dykema, D.C.. 

In this regard, the Board notes that Dr. Dykema's treatment records are not found in the record despite the fact that the RO requested that the claimant provide these records.  Nonetheless, the Board finds that a remand to request these records is not required because in April 2009 the Veteran notified VA that these records were no longer available because they had been destroyed.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

The record also shows that the Veteran was not afforded a VA examination in connection with his appeal.  However, the Board finds that a remand for a VA examination is not required.  The Board has reached this conclusion because service treatment records are negative for the claimed disorders, the post-service record is negative for the claimed disorders for many decades after his separation from military service, and, for other reasons that will be explained below, the Board does not find the Veteran's and his wife's statements regarding continuity of symptomatology competent and credible evidence.  See 38 U.S.C.A. § 5103A(d); Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA is not required to provide a medical examination to a veteran when there is no credible evidence of an event, injury, or disease in service when the Board does not find his statements credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Board will proceed to the merits of the appeal.

The Claims

The Veteran contends that his current squamous cell carcinoma of the right tonsil with metastases to the lymph nodes is related to Agent Orange exposure during his military service, to include in-country service in Vietnam.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Service incurrence of a malignant tumor may be presumed if manifested to a compensable degree within one year of the veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010).

In order to establish service connection for the claimed disorder, there must generally be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2010); 38 C.F.R. § 3.307(a)(6)(iii).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era.  38 C.F.R. § 3.307.  For these veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  

The list of diseases associated with exposure to certain herbicide agents is as follows: chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

(The Board notes that the provisions of 38 C.F.R. § 3.309(e) were amended during the pendency of the appeal in order to include additional presumptive diseases related to herbicide exposure.  See 75 Fed. Reg. 53202-53216 (Aug. 31, 2010).  However, the additional diseases do not affect the Veteran's claims as they pertain to chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.)

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

As to service connection under the presumptions found at 38 C.F.R. §§ 3.307, 3.309(e), the record shows that the Veteran served in the Republic of Vietnam from June 1970 to June 1971 which was during the Vietnam era.  Therefore, the Board finds that the Veteran meets the threshold criteria to qualify for the presumptions found at 38 C.F.R. § 3.309(e) as he is presumed to have been exposed to herbicide agents during active service.  

However, the list of diseases associated with exposure to certain herbicide agents does not include the Veteran's squamous cell carcinoma of the right tonsil with metastases to the lymph nodes.  38 C.F.R. § 3.309(e).  Therefore, entitlement to service connection for cancer of the tonsils and lymph nodes on a presumptive basis must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(e).  

As to service incurrence under 38 C.F.R. § 3.303(a), the Board finds that the Veteran is competent to report on the fact that he had problems with a sore throat and swollen tonsils and lymph nodes while on active duty because these symptoms are observable by a lay person.  See Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331; Charles, 16 Vet. App. at 370.

However, service treatment records, including a February 1970 flight examination, a June 1972 separation examination, and an October 1972 reserve component enlistment examination are negative for complaints, diagnoses, or treatment for symptoms of and/or a diagnosis of a tonsil and/or lymph node cancer.  Therefore, the Board finds the service treatment records, which are negative for symptoms of and/or a diagnosis of tonsil and/or lymph node cancer, more credible than any claim by the Veteran, his wife, and his representative that he had these cancers while in-service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  Moreover, a cancer diagnosis is a complex medical issue not capable of lay observation.  See Jandreau, 492 F.3d at 1372, 1377 (noting in a footnote that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer).  Accordingly, entitlement to service connection for tonsil and lymph node cancer based on in-service incurrence must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.307.  

As to service connection under the presumptions for chronic diseases found at 38 C.F.R. §§ 3.307, 3.309(a), the Board notes that the record is negative for evidence of tonsil and/or lymph node cancer in the first post-service year.  Therefore, entitlement to service connection for cancer of the tonsils and lymph nodes on a presumptive basis for chronic diseases must be denied.  38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

As to service connection based on post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1972 and the first complaints and/or treatment for tonsil and lymph node cancer in 2006, thereafter diagnosed as squamous cell carcinoma with metastatic squamous cell carcinoma of the lymph nodes, to be compelling evidence against finding continuity.  In this regard, while in February 2009 Dr. Dykema notified VA that as a chiropractor he treated the Veteran for radiating neck pain as early as 1973, the Board finds that nothing in this statement nor in any other medical record found in the claims file shows the Veteran's complaints, diagnoses, or treatment for tonsil and/or lymph node cancer prior to 2006.  Put another way, the over thirty year gap between the Veteran's discharge from active duty and the first evidence of the claimed disorders weighs heavily against his claims.  See Maxson, 230 F.3d at 1330; Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with painful and swollen tonsils and lymph nodes since service.  See Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331; Charles, 16 Vet. App. at 370.  The Board also acknowledges that the Veteran's wife and representative are competent to give evidence about what they see.  Id.  However, upon review of the claims file, the Board finds that the Veteran's, his wife's, and his representative's assertions that the Veteran has had his current cancers since service are not credible.  In this regard, the Veteran and his representative's claims are contrary to what is found in the in-service and post-service medical records including the June 1972 separation examination and the October 1972 reserve component enlistment examination.  The Board also finds it significant that the Veteran waited until 2008 to file his first claim for VA benefits.  If he did have a problem with these cancers since his separation from military service, it would appear only logical that he would make claims for such disabilities at an earlier time.  Id.

In these circumstances, the Board gives more credence and weight to the medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disorders for over three decades following his separation from active duty, than the Veteran's, his wife's, and his representative's claims.  See Maxson, 230 F.3d at 1330; Mense, 1 Vet. App. at 356.  Therefore, entitlement to service connection for cancer of the tonsils and lymph nodes based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b).

As for service connection based on the initial documentation of the lymph node cancer after service under 38 C.F.R. § 3.303(d), the Board finds that, while the record includes a January 2008 opinion from Dr. Miettunen and April 2008 and February 2011 opinions from Dr. Cowl, these opinions address the origins or etiology of the Veteran's primary cancer (i.e., squamous cell carcinoma of the tonsils) and not the metastic squamous cell carcinoma of the lymph nodes.  Moreover, the Board notes that the record is otherwise negative for a medical opinion linking the Veteran's metastic squamous cell carcinoma of the lymph nodes to his military service.  See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  Therefore, because the record is negative for a competent and credible medical opinion finding a causal association or link between the Veteran's lymph node cancer and an established injury, disease, or event of service origin, the Board finds that the claim must also be denied based on the initial documentation of the lymph node cancer after service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); 

As for service connection based on the initial documentation of the tonsil cancer after service under 38 C.F.R. § 3.303(d), the Board notes that in January 2008 Dr. Miettunen, from the Department of Otolaryngology at Luther Midelfort, opined as to the question of whether the Veteran's squamous cell carcinoma was caused by his exposure to Agent Orange while serving in the Republic of Vietnam, that he "cannot state definitively that the carcinoma was related to exposure to Agent Orange although [he] cannot deny the likelihood of this exposure leading to his malignancy.  In all likelihood, the environmental exposure may be related to his carcinoma."  

Similarly, in April 2008 Dr. Cowl, a Board Certified physician in occupational medicine, internal medicine, and pulmonary disease from the Department of Aerospace Medicine at the Mayo Clinic, opined that based on the information confirming the claimant's one year of service in the Republic of Vietnam, the claimant's lay claims, and the medical records that document the "presence of a respiratory carcinoma (namely cancer of the tonsil), [that] it would be as probable as not that [the Veteran's] environmental exposure may have been a significant contributing factor to [his] underlying malignancy."  

In his attached examination notes from March 2008, Dr. Cowl also noted that he met with the claimant for 60 minutes to review his medical history which included a diagnosis of squamous cell carcinoma of the tonsil with metastic squamous cell carcinoma of the lymph nodes since 2006; his military history which included one year of verified service in the Republic of Vietnam; literature regarding the history of herbicide use in the Republic of Vietnam; and controlling medical studies regarding the relationship between herbicide exposure and current forms of cancer.  It was also noted that the Veteran's history included a history of cigarette smoking that stopped many years ago and a current history of occasionally smoking cigars. 

In February 2009, Dr. Dykema reported that he had treated the Veteran from 1973 into the 2000's because of neck pain and stiffness with radiating pain and numbness into both arms and hands.  

In February 2011, Dr. Cowl provided VA with a follow-up letter in support of the Veteran's claim.  In this letter, Dr. Cowl reported as follows:

As you recall, I evaluated you in March 2008 at which time correspondence was provided to you suggesting that your underlying malignancy was as probable as not to have been caused or exacerbated by exposure to dioxin-related defoliating chemicals to which you were apparently exposed during your military service in Vietnam.

Over the last three decades, there has been expanding medical literature regarding the affects of defoliants used by the United States military.  Among a variety of other medical conditions, respiratory-related cancers have been associated in several epidemiologic studies as having higher rates of malignancy when compared to control groups without such exposure.  Unfortunately, the studies do not make a strict delineation between the level of the respiratory tract such as between the upper or lower trachea or a specific lobe of the lung.  The Institute of Medicine['s] . . . latest available report, published in 2008, demonstrates limited but suggestive evidence of an association between exposure to Agent Orange and similar defoliating agents, and development of respiratory cancers involving the lung, trachea, bronchus, or larynx.  Cancers of the oropharynx or sinuses were deemed to have inadequate or insufficient evidence to determine whether a true association exists.

In your particular case, it is my opinion that your exposure to Agent Orange during your military service . . . suggests that, within reasonable medical certainty, exposure to these dioxin-related defoliating agents would have likely played a substantial contributing role to your development of squamous cell carcinoma of the tonsil.  From a toxicology perspective, the inhaled rout of these chemicals would affect the upper airway, including the upper laryngeal area which involves the site where your cancer initiated.  Therefore, it would be reasonable to expect that in your particular case, the site of the cancer occurrence could indeed be considered part of the respiratory tract for administrative purposes since the epidemiologic studies published do not precisely delineate each portion of the respiratory system in its final analysis.

On the other hand, the National Academy of Sciences (NAS) in July 2009 issued the "Veterans and Agent Orange: Update 2008," that explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, in which it was specifically opined that there is no basis to establish a relationship between a veteran's exposure to herbicides, including Agent Orange, in the Republic of Vietnam and that veteran's later developing, among other things, cancer of the pharynx including the tonsils.  See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996); 64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 30, 2003); 72 Fed. Reg. 32395 (June 12, 2007); 75 Fed. Reg. 32540 (June 8, 2010).

The NAS also opined that there is no basis to establish an association between a veteran's exposure to herbicides, including Agent Orange, in the Republic of Vietnam and that veteran's later developing, among other things, cancers of specific parts of the respiratory tract listed as the oral cavity (including lips and tongue) and nasal cavity (including ears and sinuses) as well as cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs, esophageal cancer, and endocrine cancers (thyroid, thymus, and other endocrine organs).  Id.

Initially, the Board does not find Dr. Cowl's opinion credible because, contrary to his claims that "the studies do not make a strict delineation between the level of the respiratory tract" and "the epidemiologic studies published do not precisely delineate each portion of the respiratory system in its final analysis," the leading medical authority and experts on the long term health consequences for veterans who were exposed to defoliants while serving in the Republic of Vietnam (i.e., the NAS) have specifically opined that there is no relationship between a veterans' exposure to herbicides, including Agent Orange, in the Republic of Vietnam and that veteran's later developing, cancers of the tonsils.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence).  

The Board also does not find Dr. Cowl's opinion credible because it is based on an Institute of Medicine study that is only suggestive evidence of an association between exposure to Agent Orange and development of respiratory cancers involving the lung, trachea, bronchus, or larynx and not the tonsils which is the subject of the current appeal.  See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  

The Board also does not find Dr. Miettunen's and Dr. Cowl's opinion credible because of their use of such equivocal terms as "cannot deny the likelihood,"  "[i]n all likelihood," "may have been," "suggesting that," "demonstrates limited but suggestive evidence" and "it would be reasonable to expect."  See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998).  

Furthermore, the Board finds the opinion by the experts at the NAS that tonsil cancer is not associated with herbicide exposure in the Republic of Vietnam more competent and credible than the opinions the claimant obtained from both Dr. Cowl and Dr. Miettunen because of the NAS's greater knowledge and skill in analyzing the medical data.  See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  

Therefore, because the preponderance of the competent and credible evidence shows that the Veteran's tonsil cancer was not caused by his exposure to herbicides while in military service, the Board finds that the claim must also be denied based on the initial documentation of the cancer after service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); Rabideau, 2 Vet. App. at 143.

In reaching the above conclusions, the Board has not overlooked the Veteran's, his wife's, and his representative's assertions that the claimant's cancers were caused by his military service.  However, the Board finds that these conditions may not be diagnosed by their unique and readily identifiable features because, while swollen and painful tonsils and lymph nodes are observable by lay person, special equipment and testing is required to diagnose cancer and therefore the presence of the disorders is a determination "medical in nature" and not capable of lay observation.  See Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331; Charles, 16 Vet. App. at 370.  Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that his cancers of the tonsils and lymph nodes were caused by service are not competent evidence.  See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998).  As to the tonsil cancer claim, the Board also finds more competent and credible the expert opinion provided by the NAS than these lay claims.  See Black, 10 Vet. App. at 284 (1997). 

Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for cancer of the tonsils and lymph nodes on a direct and a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.  

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  However, as the preponderance of the evidence is against the claims, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for cancer of the tonsils is denied.

Service connection for cancer of the lymph nodes is denied.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs