Citation Nr: 1136812 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-12 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for postoperative residuals of cancer of the tongue, to include as due to exposure to herbicides. 2. Entitlement to service connection for postoperative residuals of cancer of the throat, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD W. Harryman, Counsel INTRODUCTION The Veteran had active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran's cancer of the tongue, to include as due to exposure to herbicides, was not shown in service, or for many years thereafter, nor is it the result of any incident occurring during his military service, to include as due to inservice exposure to herbicide. 2. The evidence does not show that the Veteran had cancer of the throat. CONCLUSIONS OF LAW 1. Postoperative residuals of cancer of the tongue, to include as due to exposure to herbicides, were not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. Postoperative residuals of cancer of the throat, to include as due to exposure to herbicides, were not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 the 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 information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's April 2005 and May 2005 letters to the Veteran advised him of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As for his claims for service connection, the RO's letters informed the Veteran of what evidence was required to substantiate his claims for service connection, and notified the Veteran of his and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence or information in his possession to the RO. With respect to the Dingess requirements, the RO's December 2006 notice letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the RO's April 2005, May 2005, and December 2006 notice letters effectively satisfied the notice requirements with respect to the issues being adjudicated herein. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In June 2010, the Board remanded the case to obtain a medical opinion as to the etiology of the Veteran's tongue and throat cancer. The July 2010 VA examination, and the supplemental examination in October 2010, were performed by a VA medical doctor who had reviewed the Veteran's claims file, reviewed the history of his tongue cancer with the Veteran, examined the Veteran, and included a rationale for the conclusion reached therein. The Board therefore concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds therefore that the directives of the Board's January 2010 remand have been fully accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, there is no sign in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection may be presumed for malignant tumors, if it is shown that the Veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and this condition manifested to a degree of 10 percent within one year from the date of discharge with no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran is seeking entitlement to service connection for postoperative residuals of cancer of the tongue and throat. He attributes these conditions to his inservice exposure to herbicides, including Agent Orange. In certain cases, service connection can be presumed if a Veteran was exposed to an herbicide agent during active service. Presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; 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). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA has determined there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442-41449, 57586-57589 (1996). Historically, the Veteran served on active duty in the Army from December 1965 to November 1967, including service in the Republic of Vietnam from November 1966 to November 1967. His service treatment records are silent as to any complaints of or diagnoses of tongue or throat cancer. His November 1967 separation examination noted that the physical examination of his head, face, neck, mouth, and throat was normal. In January 2005, the Veteran filed his present claim seeking entitlement to service connection for tongue and throat cancer. Private treatment records show that the Veteran first presented to an ear, nose, and throat specialist in May 2001 with a lesion on the lateral side of his tongue. An excisional biopsy in August 2001 showed clinical stage T2, N1 squamous cell carcinoma of the left lateral tongue. In September 2001, the Veteran underwent a left partial glossectomy and left modified neck dissection; pathological analysis revealed no evidence of tumor in either the tongue or neck tissue. Subsequent follow-up visits have shown no evidence of recurrence of the tongue cancer. No chemotherapy or radiation therapy was required. Prior to the excisional biopsy in August 2001, the Veteran admitted to smoking one pack of cigarettes per day. In an April 2005 note, the ear, nose, and throat surgeon indicated that the Veteran was doing well on routine follow-up visit. The surgeon indicated that the Veteran "[n]eeds copies of records for VA use. There may be claims related to Agent Orange use in Viet Nam." Because the Veteran's service records show that he served in Vietnam during the applicable time period, he is presumed to have been exposed to an herbicide agent during service. 38 C.F.R. § 3.307(a)(6)(iii). However, squamous cell carcinoma of the tongue is not among the diseases for which service connection may be presumed. There is no competent evidence linking tongue cancer to herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); see also Notice, 59 Fed. Reg. 341-46 (1994); 61 Fed. Reg. 41442-49, 57586-89 (1996). Further, the medical evidence shows that the Veteran's tongue cancer was first manifest in 2001, more than three decades after his separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Therefore, service connection for tongue or throat cancer cannot be presumed. When service connection for a claimed disorder is not warranted on a presumptive basis, service connection may nevertheless be established on a direct basis by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's service treatment records are negative for any evidence of tongue or throat cancer. Moreover, his November 1967 separation examination noted that physical examination of his head, face, neck, mouth, and throat was normal. Following the Veteran's discharge from service, the first complaint or treatment for any tongue disorder is not shown until 2001, which is 34 years after his discharge from service. This period without any complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims herein. See 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 addition, the Veteran has not alleged that he had tongue or throat cancer prior to 2001. At his November 2009 Board hearing, the Veteran testified that the surgeon who first operated on his tongue told him that he felt sure that because the Veteran previously had prostate cancer, his tongue cancer was also related to Agent Orange exposure. The Board suggested to the Veteran at the hearing that a written statement to that effect from a physician would be helpful to his claim. However, the Veteran has not submitted any additional evidence. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In July 2010, the Veteran underwent a VA compensation examination to obtain a medical opinion as to the etiology of his tongue and throat cancer. The examiner reviewed the claims file, and discussed the Veteran's pertinent medical history, as set forth above. The diagnosis listed by the examiner was moderately differentiated squamous cell carcinoma of the left lateral tongue in 2001. The examiner concluded that, because there was no evidence that exposure to herbicides, to include Agent Orange, causes cancer of the tongue, it is "less likely than not" that the Veteran's military service, to include exposure to Agent Orange, was a contributing factor in the development of cancer of the tongue and/or throat. In October 2010, the examiner elaborated on the previous nexus opinion. The VA examiner in July 2010 again stated that it was "less likely than not" that the Veteran's inservice exposure to herbicides, to include Agent Orange, was a contributing factor in the development of cancer of the tongue and/or throat. In addition to stating that there was no evidence that Agent Orange caused cancer of the tongue, the examiner added that the Veteran had a 39-year history of tobacco abuse, and that tobacco abuse is a well known cause of oral cancer. Although the Veteran claims that he had cancer of the throat, there is no medical evidence that such was the case. While he points to the surgery on his neck, the medical evidence of record indicates that the neck dissection surgery in 2001 was a necessary part of the surgery to excise the tongue cancer. The medical evidence shows that the Veteran's cancer in 2001 was limited to his tongue. The excised neck tissue was free of tumor. No examiner has diagnosed throat cancer. Service connection requires that the Veteran have the claimed disorder. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328, 1329, 1330-31, 1333 (Fed. Cir. 1997); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, service connection for postoperative residuals of throat cancer must be denied. As noted above, the VA examiner in July and October 2010 stated that it was "less likely than not" that the Veteran's military service, including his exposure to an herbicide agent, was a factor in causing his squamous cell carcinoma of the tongue. The examiner indicated that there was no evidence that Agent Orange causes tongue cancer and that the Veteran's long history of tobacco abuse was the more likely cause, since tobacco abuse is a well known cause of oral cancers. The examiner's opinion was based on a review of the Veteran's clams file and on examination of the Veteran, and was supported by adequate rationale. The only other opinion of record regarding the etiology of the Veteran's tongue cancer comes from the Veteran and his spouse's statements and testimony. However, their statements are not competent evidence on complex medical matters, including whether there is a nexus between the Veteran's tongue cancer and his military service, or to any incident therein, including exposure to an herbicide agent. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims of entitlement to service connection for tongue and throat cancer, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for postoperative residuals of cancer of the tongue, to include as due to exposure to herbicides, is denied. Service connection for postoperative residuals of cancer of the throat, to include as due to exposure to herbicides, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs