Citation Nr: 1123380 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 10-12 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for throat cancer, residuals. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1950. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied the Veteran's claim of entitlement to service connection for throat cancer. In May 2010, the Veteran and his wife testified before the undersigned Veterans Law Judge, seated at the RO in Detroit, Michigan. A transcript of the hearing has been associated with the claims file. In September 2010, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. The Veteran's representative, at the time of his December 2010 Appellant's Post-Remand Brief, waived agency of original jurisdiction (AOJ) consideration of post-service treatment records submitted to VA subsequent to the November 2010 Supplemental Statement of the Case (SSOC). 38 C.F.R. § 20.1304 (2010). Therefore, the Board may properly consider such newly received evidence. Please note 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). FINDING OF FACT The most probative evidence of record indicates that the Veteran's throat cancer, residuals, is not attributable to service and was not first manifest within one year of separation from service. CONCLUSION OF LAW Throat cancer, residuals, was not incurred in or aggravated by service and may not be presumed as such. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 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 FINDING AND CONCLUSION Duties to Notify and Assist the Appellant The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By a September 2008 letter, sent prior to the initial adjudication of his claim, the Veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agencies, or companies who had additional records to help decide his claim. He was informed that VA would attempt to review his claims and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, and obtain service, VA, and private treatment records as indicated. The September 2008 VCAA letter also informed the Veteran of the appropriate disability rating or effective date to be assigned. Since the Board has concluded that the preponderance of the evidence is against the Veteran's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no allegation from the Veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes: (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA- authorized medical records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. See 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical opinion or examination if the evidence establishes: (1) a current disability or persistent or recurrent symptoms of a disability; (2) an in-service event, injury, or disease; and (3) the current disability may be associated with the in-service event, but (4) there is insufficient evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA examination in September 2010. In February 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) and the opinion, received in March 2011, has been associated with the claims file. In April 2011, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion, and indicated that he was entitled to submit additional evidence or argument. The Veteran's response, in the form of an Appellant's Brief filed by his representative in June 2011, is associated with the claims file. The Veteran's available service treatment records and all identified, authorized, and available post-service treatment records relevant to the issue on appeal have been requested or obtained. The Board notes that the balance of the Veteran's service treatment records, with the exception of a February 1949 record of one instance of treatment, is unavailable due to fire-related loss. By the above-described September 2008 VCAA letter, the RO informed the Veteran that there was a fire at the National Personnel Records Center (NPRC) in July 1973 and that if his records were stored there during that time, such records may have been destroyed. The RO, at that time, asked the Veteran to complete a NA Form 13055 in detail, in order to further search for service treatment records in support of his claim. It does not appear that the Veteran submitted a completed NA Form 13055. The NPRC, in February 2009, confirmed that the Veteran's service treatment records were unavailable due to fire-related loss. In June 2009, the RO issued a Formal Finding on the Unavailability of Service Treatment Records and informed the Veteran of the same and requested that he submit any relevant information in his possession. To date, the Veteran has not submitted any such information. Subsequent to the Board's September 2010 remand, the Appeals Management Center (AMC), also in September 2010, requested that the Veteran complete a NA Form 13055 in detail, in order to further search for service treatment records in support of his claim. To date, however, the Veteran has not submitted a completed NA Form 13055. In any event, the balance of the Veteran's service treatment records are not available, and as such records are federal records, the Board is required to provide a heightened explanation of its findings and a careful consideration of the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). The decision herein thus contains a heightened explanation of its findings and a careful consideration of the benefit of the doubt rule. However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes here that while records indicate that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), in October 2009, VA received notice from SSA that records related to his claim for such had been destroyed. The Veteran has submitted three VA Forms 4142, Authorization and Consent to Release Information, and the RO obtained private treatment records from each of the identified providers. Subsequent to the Board's September 2010 remand, the AMC requested that the Veteran file a VA Form 4142 for any other provider that treated him since separation from service for any symptoms of a throat condition. The Veteran was advised that he could submit such private treatment records himself. While the Veteran did not identify any other private treatment provider or request that VA obtain additional private treatment records, he did submit private treatment records himself. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Additionally, the Board finds there has been substantial compliance with its September 2010 remand directives. The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC, as discussed above, attempted to seek alternate sources for the Veteran's service treatment records, as evidenced by their September 2010 request that the Veteran complete a NA Form 13055. The AMC, in September 2010, sought outstanding private treatment records and provided the Veteran an opportunity to identity any additional private treatment providers and scheduled the Veteran for a September 2010 VA examination. The AMC later issued a SSOC in November 2010. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010). Service Connection As a preliminary matter, the Board notes that at the time of the Veteran's August 2008 claim, he asserted that he was exposed to radiation and asbestos during service. However, the Veteran did not assert that such exposure caused a disability and he did not describe the circumstances of any exposure. By its September 2008 VCAA letter, the RO sought additional information as to the Veteran's assertions. To date, the Veteran has not responded to the RO's request or asserted that his throat cancer, residuals, is related to any claimed exposure to radiation or asbestos, or provided any information as to the circumstances of such exposure. Instead, the Veteran asserts that his current throat cancer, residuals, is related to his in-service pharyngitis and bronchitis and claimed tonsillectomy, and the Board will analyze the Veteran's claim as such. In order to establish service connection, three elements must be established. There must be probative evidence of a current disability; an in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including malignant tumors, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The record before the Board contains a number of post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.) The first requirement for direct service connection, evidence of a current disability, has been met. There is no dispute that the Veteran has residuals of throat cancer. Private treatment records dated in October 1986 indicate that the Veteran underwent a right radical neck dissection and supraglottic laryngectomy. At that time his principal diagnosis was laryngeal carcinoma and his additional diagnoses were mild emphysema with 80 pack year cigarette smoking history. The claims file contains private treatment records reflecting treament for such from 1986 to the present. In November 2010, one of the Veteran's private physicians reported that while the Veteran has not demonstrated recurring neoplasm, he continues to have a disability related to his 1986 surgery, including a marginal airway with intermittent obstruction and marked scarring, without an epiglottis. The second requirement for direct service connection, evidence of disease or injury in service, is also met. As discussed above, the only service treatment record available is a February 1949 record of one instance of treatment. At that time, such records indicate that the Veteran hospitalized for seven days for pharyngitis, acute, catarrhal, moderate, cause undetermined; and bronchitis, acute, moderate. The Veteran, in statements made during the appellate period, including at his May 2010 Board hearing, asserts that he underwent a tonsillectomy during service. He asserts that he had trouble with his throat during the entirety of his one year of service, including soreness and swelling. The Veteran is competent to report that he experienced soreness and swelling of the throat during service and was told that his tonsils were removed during an in-service surgical procedure. Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.). There is no evidence that such competent statements are not credible. The Board now turns to a discussion of the third requirement of direct service connection, a causal relationship between the Veteran's current throat cancer, residuals, and his service, including his in-service pharyngitis and bronchitis and claimed tonsillectomy. The Veteran underwent VA examination in September 2010. Subsequent to review of the claims file, including consideration of the Veteran's claimed in-service tonsillectomy, the examiner opined that it is less likely that the Veteran's throat cancer, residuals, was caused by or a result of in-service pharyngitis. The examiner provided a recitation of the Veteran's post-service treatment and asserted that it was difficult to say that the Veteran's cancer was a direct result of the single episode of in-service pharyngitis. He reported that the Veteran also had a history of 80 pack years of cigarette smoking from the time of his separation from service to the time of his cancer surgery. Based on the fact that the VA examiner, in September 2010, reasoned only that it was difficult to say that the Veteran's cancer was a direct result of the single episode of in-service pharyngitis, the Board, in February 2011, sought an opinion from a medical specialist from the VHA. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board received the VHA opinion in March 2011. At that time, the physician opined that, subsequent to review of the Veteran's claims file, it is not likely that the Veteran's supraglottic laryngeal cancer and residuals are etiologically related to his service, including his in-service episode of pharyngitis and bronchitis and claimed tonsillectomy. He reasoned that, to his knowledge, there is no literature to suggest that an acute upper respiratory tract infection would predispose to development of larynx cancer 37 years later. He opined that it is more likely that the Veteran's documented history of smoking predisposed to the development of his cancer, as smoking is a well-established risk factor for the development of larynx cancer. The physician further opined that the Veteran's laryngeal cancer, a malignant tumor by definition, did not manifest within one year of separation from service, as the Veteran did not present with such until 1986. The physician further commented on the fact that the Veteran claimed to have had an in-service tonsillectomy and his post-service treatment records are also positive for a tonsillectomy. The physician reported that typically, a small portion of the palatine tonsils are left behind during routine tonsillectomies, and that there is a possibility of regrowth necessitating removal. The Board finds that the VHA opinion rendered in March 2011 is credible because it included consideration of the Veteran's claimed in-service tonsillectomy, and was made subsequent to review of all relevant and available treatment records. The examiner offered a reasonable medical basis for his conclusion. Absent credible evidence to the contrary, the Board is not in a position to further question the March 2011 VHA opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). There is no indication that any of the Veteran's treatment providers have opined as to any relationship between the Veteran's throat cancer, residuals, and his service, to include his in-service pharyngitis and bronchitis and claimed tonsillectomy. The Board notes here that the Veteran's spouse, at the time of the May 2010 Board hearing, asserted that the Veteran "had always had problems with his throat". The Veteran's representative, in his June 2011 Appellant's Brief, argued that the VHA opinion did not consider the lay statements of record regarding the Veteran's throat problems following service. Careful review of the claims file is silent for any assertions from the Veteran that he experienced continuous throat symptoms from the time of his separation from service to the present. At the time of his claim of entitlement to service connection for throat cancer, residuals, the Veteran reported that his disability began in 1986. The Board notes that such year represents the date upon which the Veteran was diagnosed with throat cancer. In his October 2008 statement, the Veteran described his in-service symptoms to include a sore throat and swelling, lasting the entirety of his one year of service, and his in-service treatment to include a tonsillectomy. He reported that he sought treatment after separation from service for throat symptoms in 1983. At the time of the Veteran's May 2010 Board hearing, he provided the same history. The Board notes that while the Veteran was difficult to hear at the time of the Board hearing, and his wife provided significant assistance in making the Veteran's statements clear, there is no evidence that the Veteran was not capable of reporting his medical history. The Veteran did not assert that he experienced continuous throat symptoms from 1950, the year he separated from service, to 1983, the year he sought treatment for throat symptoms. Based on the foregoing, the Board finds that while the Veteran's spouse is competent to assert that she perceived that the Veteran "always had problems with his throat" and there is no evidence that she is not credible, the Veteran's own lay statements regarding his medical history are more probative evidence in the present claim. Thus, the VHA physician had before him and considered the most probative evidence of record. The only evidence in support of the Veteran's claim is his own assertion that his current throat cancer, residuals, is related to his in-service pharyngitis and bronchitis and claimed tonsillectomy. While the Veteran is competent to testify as to the symptomatology related to his throat, he is not competent or qualified, as a layperson, to render an opinion concerning the complex medical relationship between service and his throat cancer, residuals. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Board acknowledges that the United States Court of Appeals for the Federal Circuit has held that lay testimony could, in certain circumstances, constitute competent nexus evidence, see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), in the instant case, the Board finds that the question regarding the onset of the Veteran's disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds the Veteran's statements regarding a nexus between service and his current throat cancer, residuals, to be of little probative value as he is not competent to opine on such a complex medical question. Therefore, the Board finds that the March 2011 VHA opinion is of more probative value than the Veteran's statements as to the relationship between service and his current throat cancer, residuals. Service connection may be granted when all the evidence establishes a nexus between service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). As the most probative evidence of record does not establish a nexus between the Veteran's period of service and his current throat cancer, residuals, service connection for the same is not warranted. In this case, service connection is not warranted on a direct basis. The most probative evidence of record does not establish that the Veteran's current throat cancer, residuals, was incurred in or aggravated by his service, or any incident therein, or that he experienced continuous symptoms of throat cancer from the time of separation from service to the present. Additionally, although the Veteran's throat cancer, residuals, is a condition for which presumptive service connection may be granted, as such are residuals of a malignant tumor, there is no evidence that such manifested to a compensable degree within one year following active service. Thus, service connection is not warranted on a presumptive basis. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for throat cancer, residuals, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for throat cancer, residuals, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs