Citation Nr: 1303537 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 12-09 901 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for cancer of the oral cavity, status post partial right maxillectomy with lymph node removal, to include as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1980. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an July 2010 rating decision of the RO in Jackson, Mississippi. The RO in Roanoke, Virginia currently has jurisdiction over this matter. In August 2012, the Board sought a VHA medical opinion in this appeal. That opinion has been obtained and associated with the claims file. The matter has been returned to the Board and is now ready for appellate disposition. The Board notes that, although additional medical evidence was submitted after the last Statement of the Case, in a January 2013 Medical Opinion Response Form, the Veteran waived his right to have this evidence reviewed in the first instance by the RO. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. In January 2013 correspondence, the issue of service connection for posterior subcapsular cataracts, to include as due to exposure to ionizing radiation, was raised. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers it 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. The Veteran is shown to have what has been deemed to be a radiogenic disease and to have been exposed to ionizing radiation during service. 2. The Veteran is not shown to have manifested complaints or findings referable to cancer of the oral cavity during his extensive active service or for many years thereafter. 3. The currently demonstrated cancer of the oral cavity, status post partial right maxillectomy with lymph node removal is not shown to have been due to an event or incident of the Veteran's extensive period of active service, to include his documented exposure to ionizing radiation. CONCLUSION OF LAW The Veteran's disability manifested by cancer of the oral cavity status post partial right maxillectomy with lymph node removal is not due to his exposure to ionizing radiation or other disease or injury that was incurred in or aggravated by active service; nor may the cancer be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Under applicable law, 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 & Supp. 2012); 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 or her 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. 38 C.F.R. § 3.159(b)(1). 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). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in August 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also 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. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded the opportunity for a personal hearing. He has been afforded a VA examination, and further medical opinions have been obtained. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Background The Veteran contends that his exposure to radiation during service caused the development of the current cancer of the oral cavity, status post partial right maxillectomy with lymph node removal. Specifically, while serving in the U.S. Air Force, he was exposed to ionizing radiation while performing his duties testing radiation measuring equipment. The record reflects that the Veteran served in the military for over 20 years. Service records confirm that he served as a precision measuring equipment superintendent, as noted. His service treatment records include a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation. His DD Form 1141 shows a total accumulated dose of 1.250 rem from August 3, 1961 to February 1, 1973. The service treatment records additionally show that, on March 4, 1978, a biopsy was taken from tissue of the right mandible and right buccal mucosa. The biopsy showed that gingival tissue of the mandible represented a psogenic granuloma, a benign condition. The tissue of the buccal mucosa represented benign hyperparakeratosis with no evidence of dysplasia. The biopsies were taken to rule out lichen planus or a lichenoid lesion. An x-ray study of the sinuses performed in June 1978 showed no abnormalities other than the presence of sinusitis. An x-ray study of the sinuses conducted in May 1980, shortly after discharge, was normal. In August 1997, a private dentist noted a leukoplakic lesion of the right buccal mucosa opposite tooth #31 and informed the Veteran to schedule a biopsy of the lesion. The lesion was on his right cheek. In 1999, the Veteran sought dental treatment due to irritation of his right upper gum region. The pain had been increasing, and the Veteran eventually noticed bleeding while brushing his teeth. He was seen by his dentist, who referred him to a surgeon. A biopsy was performed in June 1999, which showed poorly differentiated squamous cell carcinoma. A CT scan of his head and neck was conducted and showed a slightly enlarged right anterior cervical lymph node measuring 1.2 centimeters. There was no evidence of bone invasion. Shortly thereafter in June 1999, surgery was performed. A portion of the right maxilla, including several teeth, was removed, as well as lymph nodes in the neck. The surgical pathology report showed no tumor in the sinus mucosa. Moderate to poorly differentiated squamous cell carcinoma, stage IV, was found in the right maxilla. Nine lymph nodes were dissected and showed no cancer. The Veteran was subsequently treated with radiation therapy. He has remained cancer-free since 1999. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including malignant tumors, when such are manifested to a compensable degree within the initial post- service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for disability that is claimed to be due to radiation exposure during service can be established in three different ways: on a presumptive basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d); with the aid of the development requirements of 38 C.F.R. § 3.311, or on a direct basis. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996) aff'd sub nom., Ramey v. Gober, 120 F.3d. 1239 (Fed. Cir. 1997). Under the first method of establishing service connection, there are certain types of cancer that may, under certain circumstances, be service connected on a presumptive basis if the Veteran participated in a radiation risk activity as defined by regulation. See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed Veteran" means a Veteran who participated in a "radiation-risk activity." 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation- risk activity" is defined as follows: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; or certain service on the grounds of gaseous diffusion plants at specific locations; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). The second method of establishing service connection, under 38 C.F.R. § 3.311(a), calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, such as this one, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. The controlling regulation, 38 C.F.R. § 3.311(b), includes a list of "radiogenic diseases," which includes any type of cancer, that may be service connected provided that certain conditions specified in that regulation are met. According to 38 C.F.R. § 3.311(b)(1), when (1) there is a determination that the Veteran was exposed to ionizing radiation; (2) that he subsequently developed a radiogenic disease; and (3) this disease became manifest within a certain specified period after exposure to radiation in service, VA will refer the claim to the Under Secretary for Benefits to consider the claim and request an advisory opinion. The Veteran is not currently diagnosed with any of the presumptive diseases identified as diseases specific to radiation-exposed Veterans under 38 U.S.C.A. § 1112(c)(2) and 38 C.F.R. § 3.309(d)(2). Additionally, he did not participate in a "radiation risk activity" as defined by 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). Therefore his claim of service connection for cancer of the oral cavity status post partial right maxillectomy with lymph node removal as due to radiation exposure cannot be presumptively service connected under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309. However, as the Veteran is currently diagnosed with cancer of the oral cavity, a radiogenic disease under 38 C.F.R. § 3.311, which he contends was caused by exposure to ionizing radiation, the Board will assess the Veteran's claim under 38 C.F.R. § 3.311. In January 2010, a dose estimate was requested to determine, to the extent possible, the amount of radiation to which the Veteran was exposed as a result of his activities testing radiation measuring equipment while on active duty. In April 2010, the Air Force Medical Support Agency queried the occupational radiation monitoring records in the USAF Master Radiation Registry. It was determined that the Veteran received a total effective dose equivalent of 0.834 rem. In July 2010, the Director of Radiation and Physical Exposures, on behalf of the Under Secretary, opined that it is unlikely that the Veteran's cancer of the oral cavity could be attributed to in-service radiation exposure. The Director acknowledged the two separate radiation doses in rendering this opinion, the 0.834 rem finding of the Air Force Medical Support Agency, as well as the Veteran's DD Form 1141, showing a reading of 1.25 rem beta. The Director put the data into a computer program, which calculated the likelihood that the Veteran's cancer of the oral cavity was caused by ionizing radiation. The program calculated a 99th percentile value for a probability of causation of 1.00%. In light of the above opinion, the Director of Compensation and Pension provided an advisory opinion subsequently in July 2010. The Director concluded that there was no reasonable possibility that the Veteran's cancer of the oral cavity resulted from exposure to radiation in service. The Director noted that the Veteran was exposed to ionizing radiation at the age of 27, and developed cancer of the oral cavity approximately 38 years later. The Director noted that the total effective dose equivalent limit for occupationally exposed individuals is 5 rem per year, much higher than the Veteran's exposure levels. In reaching his conclusion, the Director also reiterated the findings of the Under Secretary, including the determination that the probability of causation was 1%. In addition to these opinions, which were obtained by the development required by 38 C.F.R. § 3.311, the record contains the opinion of a private physician and two VA examiners. In October 2009, two VA examinations were conducted, one by a dentist, and one by a nurse practitioner addressing lymphatic disorders. The nurse practitioner rendered no opinion and deferred to that of the dentist. The dentist opined that the Veteran's current condition was not related to the treatments and biopsies done in service, or to exposure to ionizing radiation. As for the treatments and biopsies in service, the examiner concluded that the diagnosis of benign hyperparakeratosis was essentially an intraoral callus and was usually a result of cheek biting or cheek chewing. Further, the Veteran had routine dental care in service when his current disability was never present. As for radiation in service, the examiner noted the Veteran was exposed to a dose of radiation that was 1/100th the acceptable permissible dose. He noted that oral cancers can be caused by any number of factors, including genetics, environmental factors, the use of tobacco and alcohol, viral and autoimmune factors, and parafunctional habits. The examiner stated it would be mere speculation to say that the Veteran's minimal dose caused the squamous cell carcinoma. The examiner additionally felt that the 1999 surgery might possibly have been minimized if the Veteran had followed up on the initial lesion identified in 1997. In February 2011, a private physician involved in the 1999 surgery, rendered an opinion. He opined that the likelihood that radiation caused the Veteran's cancer was "quite low." He noted that common causes of oral cavity cancer were tobacco and alcohol exposure, neither of which were etiologic factors in his case. The next most common cause was HPV infection, which is unknown the Veteran's case. Although radiation-induced cancers are difficult to pinpoint, the Veteran's particular dose was noted to be small and not typically associated with the type of tumor he had. The physician further noted that radiation-induced carcinomas were generally associated with whole-body exposure to radiation. In October 2012, a VHA opinion was obtained. The report was authored by a chief of radiation oncology and a supervisory physicist of radiation oncology. The physicians opined that the Veteran's oral cancer was not at least as likely as not due to an event or incident in service, including radiation exposure. In rendering this opinion, the physicians relied on two scientific reports, and discussed the findings of these reports and their implications to the present case. The physicians also noted that, for radiation doses below 10 rem, such as in the Veteran's case, the health effects were not well known. The examiners acknowledged that it was within the realm of possibility that the Veteran's cancer was caused by in-service ionizing radiation, but they did not feel that this likelihood was at least a 50 percent chance. The examiners further noted that, if they were to conclude that the Veteran's radiation exposure were at least 50 percent likely to have caused his cancer, then all claims of service connection for cancer based on radiation exposure would also have to be granted. The record is devoid of any other evidence addressing the etiology of the Veteran's disability. As the preponderance of the most probative and competent evidence is against the claim, it must be denied. In rendering this decision, the Board notes that, in January 2013, the Veteran's representative essentially argued that it was inappropriate for the VHA examiners to render an opinion based on what the outcome would mean for future cases. However, the Board finds that the opinion was clearly based on other factors, including a review of the medical literature, and the Veteran's particular dose estimate. The Board additionally notes the Veteran's arguments that his dose estimate was inaccurate in that he was exposed to much more radiation than shown was reported. However, in the absence of corroborating documentation, it must rely on the evidence before it, which includes the Veteran's DD Form 1141 and the documents contained with the Air Force Master Radiation Exposure Registry. The Veteran is not competent to independently calculate his own total dose exposure, but has offered no such numerical estimation. The Board further notes that under current VA regulations, compensation is available for only particular types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). The Veteran in this case seeks service connection for cancer. He does not seek service connection for a dental condition due to in-service trauma to the face or teeth or disease. Appropriately, the claim has not been developed as such. Indeed, the record shows that the Veteran lost a portion of his maxilla and accompanying teeth after service, in 1999. For these reasons, service connection is also not warranted when considering 38 C.F.R. § 4.150, Diagnostic Code 9913. In this vein, the Board acknowledges that a claim of service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Here again however, as the Veteran seeks service connection for cancer, not for a dental condition, consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161 is not warranted. In reaching this decision, the Board notes that the Veteran, on his own behalf, asserts that his current cancer of the oral cavity is related to military service, including to exposure to ionizing radiation. However, the Veteran is not competent or qualified, as a layperson, to render an opinion concerning medical causation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). This case involves difficult medical questions that require both scientific and medical expertise. It is not the type of situation where a lay opinion would be significantly probative as to etiology. The question of etiology of the Veteran's disability goes beyond a simple and immediately observable cause-and-effect relationship, and, as such, he is not competent to render a scientific or medical opinion on this matter. The Board notes that the Veteran has not explicitly alleged, nor does the evidence show, continuity of symptomatology since service. The record shows that the Veteran's cancer first arose in 1997. This establishes the earliest post-service documentation of oral cancer as nearly 20 years after service. See Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim.) Moreover, there is no documentation of oral cancer in service. For these reasons, the Board finds that continuity of symptomatology regarding the Veteran's oral cancer has not been established. Finally, while tumors may be service connected if compensably disabling within one year of separation from active duty, 38 C.F.R. §§ 3.307(a), 3.309(a), there is no medical evidence documenting the presence of the cancer within one year of the Veteran's discharge from active duty in January 1980. Hence, presumptive service connection is not warranted. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for cancer of the oral cavity status post partial right maxillectomy with lymph node removal, to include as due to ionizing radiation; there is no doubt to be resolved; and the claim of service connection is denied. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for cancer of the oral cavity status post partial right maxillectomy with lymph node removal is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs