Citation Nr: 1228417 Decision Date: 08/17/12 Archive Date: 08/21/12 DOCKET NO. 12-08 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a malignant neoplasm of the hypopharynx, to include as due to Agent Orange exposure, for purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The late Veteran served on active duty in the United States Army from January 1966 to November 1967, during which time he served in the Republic of Vietnam. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a malignant neoplasm of the hypopharynx, to include as due to Agent Orange exposure. The Veteran filed a timely notice of disagreement with respect to this denial in early October 2010. However, he died approximately three weeks afterward, in late October 2010. In April 2011, his widow filed a timely application to be substituted as a claimant for VA compensation for a malignant neoplasm of the hypopharynx for accrued benefits purposes, pursuant to 38 U.S.C.A. § 5121A (West 2002 & Supp. 2011). As the facts of the case met the provisions of this new statute, her application was deemed proper and she was furnished with a statement of the case in early February 2012. She thereafter filed a timely substantive appeal in mid-February 2012, thereby establishing herself as the appellant in the present appeal. FINDINGS OF FACT 1. The late Veteran served on land within the territorial confines of the Republic of Vietnam during the Vietnam War Era and is presumed to have been exposed to chemical herbicides (Agent Orange) during active military service. 2. The late Veteran had a pending claim for service connection for a malignant neoplasm of the hypopharynx at the time on his death in October 2010. 3. The clinical evidence is in relative equipoise with respect to the likelihood that the late Veteran's exposure to chemical herbicides (Agent Orange) during active military service played a significant etiological role in his development of a malignant neoplasm of the hypopharynx. CONCLUSION OF LAW The criteria for service connection for a malignant neoplasm of the hypopharynx, for accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1110, 5107(b), 5121A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION As will be further discussed below, the appellant's claim of entitlement to a malignant neoplasm of the hypopharynx, for accrued benefits purposes, is being granted in full. Therefore, the Board finds that any error related to the Veterans Claims Assistance of Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) with regard to this issue is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thusly, there is no need to engage in any analysis with respect to whether the requirements of the VCAA have been satisfied concerning this particular matter on appeal. Service connection may be granted if it is shown the veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.306 (2011). A disorder also may be service connected if the evidence of record reveals the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, generally, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The pertinent clinical evidence shows that in May 2009, the Veteran was first diagnosed with a hypopharyngeal carcinoma. His cancer rapidly progressed and he eventually succumbed to this metastatic disease in late October 2010. His official death certificate lists a malignant neoplasm of the hypopharynx as his primary and sole cause of death at the age of 64 years. The Veteran's service treatment records show no objective indication of onset of any malignant or benign tumors or abnormal tissue growth in the vicinity of his throat and pharynx during active duty and his post-service medical records do not show any such cancers manifest to a compensable degree within one year following his separation from service in November 1967. VA clinical records relating to his cancer treatment also do not present any objective medical opinion linking his ultimately fatal case of hypopharyngeal carcinoma to his period of military service. The Veteran's service personnel records show that he served in the United States Army as a combat engineer and establish that he served on land within the territorial confines of the Republic of Vietnam during the Vietnam War Era. Thusly, the Veteran is presumed to have been exposed to chemical herbicides (including Agent Orange) that were used by American forces in defoliant operations in Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii) (2011). However, cancers of the pharynx, such as the carcinoma that afflicted the late Veteran, are specifically recognized by the National Academy of Sciences (NAS), based on sound medical and scientific information and analysis conducted at the direction and behalf of the Secretary of VA, as not warranting the presumption of service connection based on exposure to herbicides in the Republic of Vietnam. See Veterans and Agent Orange: Update 2010 (Update 2010) [issued in September 2011]; 38 U.S.C.A. § 1116(b), (c) (West 2002). Notwithstanding the absence of any statutory presumption of service connection for pharyngeal cancers, the United States Court of Appeals for the Federal Circuit has held in Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994), that diseases diagnosed after discharge may still be service connected if all the evidence establishes a nexus between the claimed disease and service. In this regard, the appellant submitted a lengthy report from a private physician, Craig N. Bash, M.D., dated immediately after the Veteran's death in October 2010, in which Dr. Bash established his medical credentials and expertise and affirmed that he had reviewed the late Veteran's pertinent clinical records and history. Based on his review of the specifics of the Veteran's case and on his own medical research and analysis of relevant clinical studies, Dr. Bash presented the following opinion and supportive rationale, which states in pertinent part: The purpose of this expert forensic opinion is to evaluate this 64 [year-old] with [history of ear nose and throat] tumor (squamous cell cancers [of the] hypopharynx. . . as they relate to his Viet Nam service time and [VA's] concept of reasonable doubt. . . concerning credible evidence. [The Veteran] entered service fit for duty without any doctor-diagnosed illness. [The Veteran] was exposed to Agent Orange (AO) [which is] a well know[n] carcinogen. It is my opinion considering every possible sound medical etiology/principle, to at least the 50% level of probability that his [malignant neoplasm of his] hypopharynx. . . and his unfortunate demise at [age] 64 was likely due to his experiences with AO in Viet Nam during military service for the following reasons. 1. He entered the service fit for duty without any doctor-diagnosed illnesses. 2. He was exposed to AO in service. 3. He developed [squamous cell cancer] at a young age. 4. His current symptoms. . . show chronicity of his symptoms. 5. [Dr. Bash cited a 2008 epidemiological study of the Institute of Medicine listing estimated relative risks for oral, nasal, and pharyngeal cancer for Australian and U.S. veterans exposed to AO in the Republic of Vietnam and then analyzed and interpreted the results using his clinical expertise.] 6. The time lag between injury in service and current pathology is consistent with known medical principles and the natural history of this disease. 7. His family history is negative for [ear nose and throat] cancers. 8. The only confounding factors are his social history, which, is 2.5 [packs per day] X 20 years and [alcohol] abuse X 30 years. It is also known that [alcohol] use and tobacco use increase a person['s] risk for [head] and neck tumors. It is my opinion that all three of his risk factors smoking, [alcohol] use and agent orange exposure worked together to cause his head and neck tumor and it is impossible to assigned [sic] a specific risk percentage to each of his components of risk, but it is my opinion that it is likely that his AO exposure significantly contributed to his [squamous cell cancer] tumor based on the literature and his young age of death. It is my opinion that had he not had his AO exposure that he would not have died as soon as he did as it is likely that AO exposure was a significant contributor to his development of [squamous cell cancer] and his demise. His records do not support any other more plausible etiologies for his demise. 9. No other physician has opined to the contrary. 10. This opinion is consistent with the [late Veteran's] subjective lay statements, the objective findings/imaging tests/diagnoses. The Board has considered the foregoing evidence. Although cancers of the pharynx are specifically recognized by the NAS as not warranting the presumption of service connection based on exposure to herbicides in the Republic of Vietnam, the Board finds that this epidemiological conclusion is at least equipoisally offset by the opinion of Dr. Bash, which constitutes highly probative objective evidence in its own right of an etiological relationship between the Veteran's fatal case of hypopharyngeal carcinoma and his conceded exposure to Agent Orange in service, thereby establishing a nexus between the claimed disease and the late Veteran's period of active duty. Although Dr. Bash has conceded that the late Veteran's own personal history of tobacco use and alcohol abuse would have likely predisposed him to develop pharyngeal cancer even without exposure to Agent Orange, the opining physician has nevertheless stated that the Veteran's history of Agent Orange exposure in service was a significant contributory factor towards his subsequent development of hypopharyngeal carcinoma, such that it was not possible to assign any objective percentage or quantification of the role of such Agent Orange exposure relative to the contributions from his tobacco use and alcohol abuse. The Board therefore finds that the evidence is in approximate balance, both in favor of and against the merits of the appellant's claim. Thusly, resolving all doubt in favor of the claimant, the benefit-of-the-doubt doctrine will be applied, and the claim of entitlement to service connection for a malignant neoplasm of the hypopharynx for accrued benefits purposes is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a malignant neoplasm of the hypopharynx, for accrued benefits purposes, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs