Citation Nr: 1306567 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 08-15 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for squamous cell carcinoma of the left tonsil, with enlarged lymph nodes. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In February 2009, the Veteran testified at a hearing before a Decision Review Office (DRO) at the RO. A transcript of the hearing is associated with the claims folder. The issue of entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder was raised by the Veteran in a June 2011 statement, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the claim is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was exposed to herbicides coincident with service in the Republic of Vietnam. 2. Squamous cell carcinoma of the left tonsil, with enlarged lymph nodes did not have its onset during service and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW Squamous cell carcinoma of the left tonsil, with enlarged lymph nodes, was not incurred in or aggravated by the Veteran's active duty military service. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.303(b), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in October 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand was at the Veteran's request in that he desired RO review of the evidence added to the file since certification to the Board. The evidence was reviewed and a supplemental statement of the case was issued in April 2012. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the October 2011 remand and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Court of Appeals for Veterans Claims (Court), in the consolidated appeal of Dingess/Hartman v. Nicholson, held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. 19 Vet. App. 473 (2006). VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 2007, prior to the initial unfavorable AOJ decision issued in May 2007. The Board observes that the November 2005 letter advised the Veteran of the evidence necessary to establish service connection, of his and VA's obligations in providing evidence for consideration, and of how to substantiate disability ratings and effective dates generally. Therefore, the Board finds that the Veteran was provided with all necessary notice prior to initial adjudication of the Veteran's claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and obtaining a VA opinion. The Veteran's VA medical records, disability records from the Social Security Administration (SSA), and a May 2011 independent medical expert (IME) opinion were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. The Board observes that the Veteran was not afforded a VA examination with regard to the claim; however, the Veteran's diagnosis and treatment of squamous cell carcinoma is well-documented as are his medical history and personal contentions. The question is whether the diagnosis is related to the Veteran's military service, and information obtained during a clinical examination with respect to the Veteran's symptomatology would not affect that determination. Thus, an independent opinion based on the record is sufficient to address the question of a nexus between the currently diagnosed disorder and the Veteran's military service. The Board notes that once VA undertakes to obtain such an opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the medical expert documented the Veteran's medical history, and reviewed the claims file. Additionally, the expert reviewed the appropriate medical literature. The expert then provided an opinion that was supported by a rationale based on all the available evidence. There is nothing to suggest that the opinion is not sufficiently based on the facts of the case or that the expert reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and that additional effort to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In the case of a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he 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 C.F.R. § 3.307(a)(6)(iii). The Board notes that the Veteran's DA Form 20 reflects that he served two tours in the Republic of Vietnam. Accordingly, the Board finds that the Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina, all B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, cute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (revised 75 Fed. Reg. 53202-53216, August 31, 2010). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this case, the Veteran does not have a disability presumed to be associated with exposure to herbicides. While several forms of cancer are among the presumptive disease, squamous cell carcinoma is not among them. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran contends that his squamous cell carcinoma of the left tonsil with enlarged lymph nodes is a result of exposure to herbicides in service. Therefore, he contends that service connection is warranted for this disorder. Service treatment records reflect that, in January 1966, the Veteran was seen for complaints of a sore throat. The examination showed a few purulent pustules and marked erythema. No further treatment or complaints were noted in the treatment records and his subsequent separation examination was normal. Post-service treatment records show that the Veteran was diagnosed with squamous cell carcinoma of the left tonsil in November 2006 after noting a mass in his throat about five months prior and experiencing a sore throat. The Veteran was not afforded a VA examination for this claim. However, in February 2011, the Board requested an IME opinion pursuant to 38 C.F.R. § 20.901(d) (2012). The IME opinion was received in May 2011 and incorporated into the record. There is a conflicting opinion from one of the Veteran's VA treating physicians. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). With respect to medical opinions, the Court has found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The first opinion from the Veteran's treating physician, Dr. JMB, was received in August 2009. Dr. JMB noted that during the Veteran's service in the Republic of Vietnam he had significant exposure to Agent Orange. He opined that it is more likely than not that Agent Orange was a factor in the Veteran's development of his oropharyngeal cancer. However, the opinion contains no rationale in support of the conclusion. An opinion that contains only data and conclusions is afforded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In contrast, there is a May 2011 independent medical opinion that was obtained from Dr. HAD, an oncologist. Dr. HAD reviewed the claims file, as well as relevant medical literature. He noted the Veteran's history as a smoker and that smoking and alcohol have been shown to have a statistically significant association with the presence of tonsillar cancer. He also discussed research specific to a relationship between service in Vietnam and nasopharyngeal cancer, which found no evidence of increased risk for the development of head and neck cancers, nasal carcinoma, and nasopharyngeal carcinoma. In light of this information, Dr. HAD found the opinion of Dr. JMB to be unsubstantiated and, although he could not exclude the possibility that Agent Orange was a factor in the development of the Veteran's disease, that he could find no convincing evidence to support the hypothesis. In light of the above, the Board finds that the preponderance of the competent and probative evidence is against a relationship between the Veteran's squamous cell carcinoma of the left tonsil, with enlarged lymph nodes and his military service. First, the Board notes that the carcinoma was not diagnosed until 2006 which is 38 years after service discharge. Thus, service connection is not warranted on a presumptive basis. Further, the lapse in time between service and the first complaints and diagnoses weighs against the Veteran's claim on a direct basis. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). While the Veteran had been seen on one occasion in service, in January 1966, for the treatment of a sore throat with pustules and erythema, there is no evidence to suggest that this represented the development of a chronic disease in service. Rather, given the fact that there was no further reference to throat complaints during the remainder of his service, it is found that this was an isolated finding, which completely resolved. There is also no evidence of continuity of symptomatology; in fact, there was no further mention of throat complaints until 2006, some 36 years after his release from service. Therefore, it must be found that this isolated sore throat treated and resolved during service, did not represent the onset of a chronic throat disorder pursuant to 38 C.F.R. § 3.303(b). The Board notes the Veteran's argument that he became addicted to smoking and alcohol in service. For claims filed after June 8, 1998, service connection is prohibited for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during the Veteran's active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300 (emphasis added). Additionally, service connection on a secondary basis may not be granted for a disability that is proximately due to or the result of an injury or disease previously service-connected as due to tobacco use. Id. Service connection may be granted if a tobacco-related disability was manifest during service or to the requisite degree of disability within any applicable presumptive period. Id. However, that is not the case here. As for the Veteran's alcohol consumption, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (February 10, 1998). Therefore, to the extent the Veteran's squamous cell carcinoma may be related to alcohol use in service, service connection must be denied as a matter of law. The Board acknowledges the argument presented by the Veteran's representative in the January 2013 Informal Hearing Presentation that Dr. HAD's statement that he could not exclude the possibility of Agent Orange being a factor in the development of the Veteran's squamous cell carcinoma results in that opinion being in equipoise with the August 2009 opinion of Dr. JMB. However, Dr. HAD clearly states that the medical literature shows no relationship and that there was no convincing evidence that such a relationship exists. Thus, while Dr. HAD indicated that there was a possibility of a connection, the preponderance of the evidence cited in his opinion and his opinion itself is against the connection. Moreover, as discussed, Dr. JMB's opinion lacks probative value because it has no rationale. In light of the entirely negative medical evidence cited by Dr. HAD and his overall negative opinion, the Board finds no basis for affording the opinion of Dr. JMB probative weight equal to that of Dr. HAD simply because Dr. HAD acknowledged that a relationship is possible. An unsupported possibility of a relationship is not equal to the probability of no relationship established by the medical evidence. The Board concludes that a preponderance of the competent and probative evidence is against the Veteran's claim. Therefore, the Board determines that the doctrine of reasonable doubt is not applicable, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for squamous cell carcinoma of the left tonsil, with enlarged lymph nodes, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs