Citation Nr: 1300748	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  08-16 180	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for soft tissue throat cancer, to include as due to exposure to herbicides.

2.  Entitlement to service connection for a thyroid disorder, to include as due to exposure to herbicides or as secondary to soft tissue throat cancer.

3.  Entitlement to service connection for dry mouth and loss of taste buds, to include as due to exposure to herbicides or as secondary to soft tissue throat cancer.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Appellant and Spouse
ATTORNEY FOR THE BOARD

H. Seesel, Counsel



INTRODUCTION

The Veteran had active service from May 1948 to January 1950 and from March 1952 to March 1970, including a tour of duty in the Republic of Vietnam from October 1968 to October 1969. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 

The Board previously considered this appeal in January 2010 and May 2012 and remanded the claims for additional development.  The RO/AMC completed the requested development, but continued to deny the benefits sought.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the case was properly returned to the Board for appellate review. 

The May 2012 Board remand referred the issue of entitlement to a total disability rating based upon individual unemployabilty (TDIU).  A November 2012 memorandum notes that an inferred issue had been identified; however, a review of the record does not reflect any development has been completed on this issue.  Accordingly, the Board again REFERS the issue of TDIU for appropriate action.  Additionally, a review of the record reflects the Veteran raised claims for hearing loss, hypertension, and a lipid disorder in a March 2011 statement.  These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are also REFERRED to the AOJ for appropriate action. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  Soft tissue throat cancer was not manifested during service or within one year thereafter and is not causally or etiologically related to service. 

2.  A thyroid disorder was not manifested during service or within one year thereafter and is not causally or etiologically related to service. 

3.  A disability manifested by dry mouth and loss of taste buds was not manifested during service and is not causally or etiologically related to service. 



CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for soft tissue throat cancer have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

2.  The criteria for entitlement to service connection for a thyroid disorder have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

3.  The criteria for entitlement to service connection for a disability manifested by dry mouth and loss of taste buds have not been met.  38 U.S.C.A. §§ 1110, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted.  

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in April 2007 and May 2007 that fully addressed all notice elements.  Those letters were sent prior to the August 2007 rating decision, and the claims were most recently readjudicated in a November 2012 supplemental statement of the case.  Accordingly, the duty to notify has been met.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service treatment records, VA outpatient treatment records, and private medical records. The Veteran also submitted private treatment records, copies of service treatment records, and statements in support of his claim.  In addition, the Veteran was afforded VA examinations in July 2010 and June 2012.  These examinations were performed by medical professionals who reviewed the claims file and VA records, considered the Veteran's subjective history, completed all necessary testing, and offered opinions responsive to the questions posed by the Board remands.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); 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."); Stegall, 11 Vet. App. at 271 (1998) (holding that compliance by the Board or the RO with remand directives is neither optional nor discretionary, and where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  Accordingly, the Board concludes the VA examinations are adequate. 

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 


Law and Analysis

The Veteran seeks service connection for soft tissue throat cancer, a thyroid disorder, and a disability manifested by dry mouth, and loss of taste buds.  The Veteran argues his disorders are a result of the exposure to herbicides during service.  He also argues his thyroid disorder, dry mouth and loss of taste buds are secondary to his soft tissue throat cancer.  Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claims and the appeal will be denied. 

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury incurred 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). 

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 

Service connection may also be granted for certain chronic diseases, such as malignant tumors and endocrinopathies, when such disease is manifested to a compensable degree within one year of separation from active duty.  38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). 

When a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, Chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  For purposes of this section, the term "soft tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma) malignant giant cell tumor of tendon sheath, malignant schwannoma including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, malignant ganglioneuroma.  38 C.F.R. § 3.309, Note 1.  

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).  The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42600, 42606-42607 (June 24, 2002). 

The record reflects the Veteran served in the United States Marine Corps and was noted to have service in Vietnam from October 1968 until October 1969.  Although the Veteran has the requisite service in Vietnam and is presumed exposed to herbicides, service connection on a presumptive basis must be denied because he has not been diagnosed with a disability which is listed in the presumptive provisions of 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42600, at 42606-42607 (June 24, 2002).  The Veteran in this case specifically argues that his throat cancer should be considered a "soft tissue sarcoma."  However, the record reflects that the Veteran was diagnosed with squamous cell carcinoma of the right tonsil and tongue.  While the cancer may involve a soft tissue, the regulation specifically defines what cancers will be considered to be "soft tissue sarcoma" for the purpose of presumptive service connection.  As the regulation does not include throat or tonsil cancer as a soft tissue sarcoma, service connection for throat cancer on a presumptive basis must be denied. 38 C.F.R. § 3.309, Note 1.  

When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  In other words, notwithstanding the presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  As such, the Board will adjudicate the claims on a theory of direct entitlement to service connection. 

The June 2012 VA examiner indicated that the Veteran had residuals of squamous cell carcinoma of the right tonsil and tongue, status post excision of the tumor with hemimandibulotomy, modified radical right neck dissection with pectoralis flap, and radiation therapy.  Residuals included dry mouth, loss of taste, and hypothyroidism.  As such, the Veteran clearly has current disabilities.  The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and medical evidence of a nexus between the current disability and the in-service disease or injury.

The Veteran's service treatment records fail to reflect any complaints, treatment, or diagnoses of cancer, a thyroid disorder, dry mouth, or loss of taste.  In fact, the December 1969 examination that was conducted in connection with the Veteran's retirement from service described the endocrine system, neck, mouth, and throat as normal.  The only defect or diagnosis that was noted at that time was a bilateral inguinal hernia.  On the December 1969 report of medical history, the Veteran also denied having a history of ear, nose or throat trouble, or a history of tumor, growth, cyst or cancer.

The Veteran, however, does not contend he had the conditions during service.  In fact, during his hearing, he testified that everything occurred after service.  Rather, his contention is that all of his conditions are a result of his exposure to herbicides.  In this regard, the Veteran has met the requisite service in Vietnam and is presumed to be exposed to herbicides.  Thus, the remaining element is competent evidence of a nexus linking the present conditions to an event or incident in service, including his exposure to herbicides during service.  

The evidence includes several VA and private opinions as to the etiology of the conditions.  A March 2007 letter of S.P., M.D. (initials used to protect the Veteran's privacy) explained that he treated the Veteran for almost 10 years and noted that he had a history of squamous cell carcinoma at the right tongue that was operated on successfully and irradiated in 1994.  Dr. P. indicated that the Veteran had a history of exposure to Agent Orange during his service in Vietnam in 1968 and 1969, and upon his return, he had an ulcer in 1993 and 1994 that was worked up and surgically resected and irradiated.  Since that time, the Veteran had no signs of oral cancer, but had severe dryness of the mouth, which is radiation-induced salivary gland dryness.  He was also noted to have comorbid conditions of hypertension, coronary artery disease, thyroid disorder, lipid disorder, and arthritis.  Dr. P. indicated that several diseases have been contracted by Veterans who were exposed to Agent Orange, and one of those is oral cancer or respiratory tract cancer.  Dr. P. indicated that, to the best of his knowledge and ability, he would say there may be some association between the premature oral cancers at a young age involving the tongue and his exposure to Agent Orange.  However, he could not conclude and decide the percentage or probability that may be attributed to Agent Orange, but recommended that it be looked into.  

The Veteran was provided an Agent Orange registry examination in April 2007.  He reported his history of service in Vietnam and medical history of cancer of the tongue and right tonsil, which was operated in 1994 followed by radiation therapy and resulted in loss of salivary function and taste.  The Veteran did not know if it was related to Agent Orange, but suspected it might be.  After a review of the records and a physical examination, the physician concluded that there were no conditions associated with Agent Orange evident at that time.  The April 2007 letter concerning the Agent Orange registry explained that the lab results and chest x-ray were normal, but indicated that the Veteran had major medical problems of cancer of the tongue and tonsil, hypertension, and general arteriosclerosis that may or may not be related to military service regarding environmental contaminants.

The Veteran was afforded a VA examination in July 2010 to determine the nature and etiology of his claimed conditions.  The examiner noted the Veteran's diagnosis of squamous cell carcinoma of right tonsil in 1993.  The Veteran underwent excision of the tumor with hemimandibulotomy, modified radical right neck dissection with pectoralis flap followed by a 7-week course of radiation therapy.  The Veteran reported that since that time he had total loss of taste and dry mouth.  The Veteran also indicated that he was diagnosed with hypothyroidism in 1998 and was told that it was due to the radical neck dissection and radiation therapy for the tonsillar cancer.  

After reviewing the claims file and examining the Veteran, the examiner concluded that the Veteran had squamous cell carcinoma of the right tonsil and tongue, status post excision of tumor with hemimandibulotomy, modified radical right neck dissection with pectoralis flap, with residual scars and radiation therapy.  There was no current evidence of an active carcinoma.  The Veteran also had dry mouth, partial loss of taste, and hypothyroidism as a residual from head and neck radiation therapy for the squamous cell carcinoma.  The examiner indicated that the current dry mouth, partial loss of taste, and hypothyroidism were at least as likely as not secondary to treatment for squamous cell carcinoma of the right tonsil and tongue as these are well established long-term complications of radiation therapy to the head and neck.  However, the examiner indicated that the squamous cell carcinoma of the right tonsil and tongue with residuals was less likely than not causally related to service.  In so doing, the examiner commented that, although the Veteran served in Vietnam with presumed exposure to herbicides including Agent Orange, he did not have soft tissue sarcoma of the larynx or other lower respiratory cancers that are conceded to be caused by such exposures.  

The examiner who conducted the July 2010 VA examination provided an addendum opinion in June 2012.  After reviewing the claims file again, the examiner concluded that the residuals of squamous cell carcinoma, including the hypothyroidism, dry mouth, and loss of taste, were less likely than not causally or etiologically related to service as he was not diagnosed with tongue and tonsillar carcinoma during active duty.  In addition, the examiner concluded they were not causally or etiologically related to herbicide exposure, as there was not medical literature to support herbicide exposure as a cause of tongue or tonsillar carcinoma.  The examiner explained that the medical literature to date had not demonstrated a causal or any other association between herbicide exposure and the type of cancer for which the Veteran was treated.  Furthermore, the Veteran had a history of well established risk factors for his cancer, including tobacco and alcohol use.  The literature reviewed included the Institute of Medicine's extensive review of literature concerning herbicide exposure and neck cancers and concluded that there was inadequate or insufficient evidence to determine an association between exposure to the chemicals of interest (herbicides) and cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), and nasal cavity (including ears and sinuses).  

It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches).  In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character).  It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."  Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). 

In the present case, the Board finds the July 2010 VA examination and June 2012 addendum to be the most probative evidence.  The examiner took a detailed history consistent with the claims file and was sufficiently informed about the Veteran.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (the probative value of a medical opinion comes from when there is a factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  Furthermore, the examiner offered a detailed rationale for the opinion rendered and cited to medical literature and other risk factors specific to the Veteran.  See, Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998).

To the extent to which the March 2007 private treatment record suggested a relationship between the Veteran's disabilities and the exposure to herbicides during service, the physician never concluded or affirmatively stated that the condition was related to herbicides.  In fact, the private physician specifically indicated he could not conclude or provide a percentage finding.  Instead, he suggested it be looked into further.  It has been observed that statements from doctors which are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim.  Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the Veteran held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). 

Similarly, the letter from the Agent Orange registry was speculative, as it concluded the conditions "may or may not be related to military service regarding environmental contaminants."  Id.  Significantly, the underlying examination to that letter concluded that the Veteran had no conditions associated with Agent Orange. 

To the extent to which the Veteran has linked his disabilities to his exposure to herbicides, he is not competent to render such an opinion.  While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, the Veteran here is proffering an opinion as to the cause of the cancer, a thyroid disorder, dry mouth, and loss of taste.  38 C.F.R. § 3.159(a)(2) (defining "competent lay evidence" as any evidence not requiring that the proponent have specialized education, training, or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence is competent and sufficient in certain instances to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  An opinion as to the cause of cancer and its residuals is a complex medical question requiring interpretation of diagnostic tests and pathology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease).  Thus, the Veteran's opinion in this regard is not competent evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Layno, 6 Vet. App. at 470. 

The Board has also considered whether the squamous cell carcimona of the right tonsil and tongue and the hypothyroidism could be service connected as a chronic disability.  38 U.S.C.A. § 1112, 1137, 38 C.F.R. § 3.307, 3.309.  However, the evidence does not reflect, and the Veteran does not contend, that either condition was diagnosed within one year of the Veteran's separation from service.  As such, service connection pursuant to 38 U.S.C.A. § 1137 and 38 C.F.R. §§ 3.307, 3.309 is not warranted. 

The Veteran has also alleged the thyroid disorder, dry mouth, and loss of taste buds are related to his throat cancer, and the medical evidence above appears to support such a finding.  The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a); See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability.  Nevertheless, as explained above, the Veteran is not in receipt of service connection for his throat cancer, and therefore, service connection on a secondary basis is not warranted. 

The Board does not doubt that the Veteran is sincere in his belief that his disabilities related to his service.  While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted.  The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Accordingly, service connection is denied. 

ORDER

Service connection for soft tissue throat cancer, to include as due to exposure to herbicides is denied.

Service connection for a thyroid disorder, to include as due to exposure to herbicides and as secondary to soft tissue throat cancer, is denied.

Service connection for dry mouth and loss of taste buds, to include as due to exposure to herbicides and as secondary to soft tissue throat cancer, is denied. 



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs