Citation Nr: 1311249 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-22 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as secondary to herbicide exposure or environmental hazards. REPRESENTATION Appellant represented by: Massachuetts Office of Commissioner of Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1970 to October 1972 and from July 2002 to October 2003, including service in Operation Enduring Freedom. He also had additional National Guard service, including active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2011, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in January 2012, when it was remanded for further development, to include obtaining an additional expert medical opinion. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Squamous cell carcinoma of the right tonsil was not incurred in or aggravated by service and is not shown to be related to any event therein, to include hazardous environmental exposures. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma of the right tonsil have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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). Duty to Notify 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's January 2012 remand, additional information was sought regarding the Veteran's potential exposure to herbicides during his first period of active duty service. VA also obtained an additional expert medical opinion with respect to the Veteran's claim in April 2012. That document, when viewed in combination with an earlier opinion in October 20101, provide the necessary information for adjudicating the claim. Indeed, the expert addressed additional information received, including specific studies of the Veteran's exposure to possible environmental toxins. The expert provided an opinion as to the nature and etiology of the claimed disability, along with a reasoned rationale. Therefore, this opinion is adequate for VA purposes. Thus VA has complied with the January 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new expert opinion. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, 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). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran's service treatment records show that in 1991 he was treated for a growth on the right side of his jaw. A periodic examination in August 1991 showed that the growth had been biopsied six months prior and was determined to be benign. The Veteran was being followed by a private physician at Brigham and Women's Hospital. Thereafter, the Veteran was examined on multiple occasions, with no pathology or complaints noted, including in February 2002. A complete physical performed in November 2004 shortly after his return from Iraq showed that his throat was normal and his pharynx was described as clear. The record shows that the Veteran was diagnosed with carcinoma of the right tonsil in July 2007. The tumor was surgically removed and he underwent both chemotherapy and radiation therapy to treat the cancer. He had originally sought treatment on several occasions, beginning in October 2006, for throat pain and swelling in his neck, but the mass was not diagnosed as malignant until July 2007, despite several tests and a needle biopsy. The Veteran submitted a series of e-mail messages from January 2008 that included an opinion by Ying Zhu, a public health professor at Harvard. Dr. Zhu offered an opinion based on the information provided by the Veteran and research into the burn pits in Iraq. Among the evidence listed as supporting the opinion was a statement by the U.S. National Toxicology Program which noted that there is no safe dose of dioxin exposure, or threshold level below which dioxin will not cause cancer. It was Dr. Zhu's opinion that since the Veteran had not smoked for several years, the dioxin exposure was more likely to have caused cancer than the previous smoking, noting that the latency period for tonsil cancer is unknown. The RO submitted the Veteran's claims file for review with respect to his exposure to environmental hazards and the likelihood of this exposure having caused his cancer. In October 2010, the medical expert, the chief of oncology and hematology, offered an opinion based on a review of the entire record. The expert noted that cancer of the head and neck, including the tonsils, is more common in men over 50 and that primary risk factors include tobacco and alcohol use, viral infection, and possibly environmental exposures. The expert had reviewed the reports regarding the burn pits with their list of possible contaminants and the opinions of Mr. Curtis and Dr. Elliot that they posed an acute and possibly a chronic health hazard to those exposed to the smoke. The expert noted that the primary risk factors for head and neck cancers were smoking and alocohol use, denoting a clear cut known risk, and that the Veteran had smoked for many years, up until about two years before his diagnosis, and regularly consumed alcohol. In contrast, environmental exposure is listed as only a "possible" cause for head and neck cancer, indicating a less strong association with the diagnosis. The expert observed that there was no way of knowing which of the many possible contaminants related to burn pits the Veteran was exposed to, and that most cancers related to environmental exposures occur many years after the exposure. Based on all of these considerations, it was the expert's opinion that "although it is possible that this malignancy could have been related in some way to his exposures in Iraq . . . it is less likely as not" the result of the environmental exposures experienced in Iraq. On remand in February 2012 a supplemental expert opinion was obtained. The expert, an oncologist and hematologist, offered the opinion that the Veteran's carcinoma of the tonsil was less likely than not (less than 50 percent probability) the result of his military service. Specifically, the expert noted that the Veteran had a history of cigarette smoking and daily alcohol use, both well established risk factors for tonsillar carcinoma. The expert noted the additional information on the burn pits provided by the Veteran, including that associated with the Health Risk Assessment published by the military, but observed that the data is unclear as to what specific substances were present and the amount of toxin the Veteran was exposed to. Because of this uncertainty, the limited exposure window of three months, and the short latency period of four years, as compared to decades of alcohol and tobacco use, the expert stated that it was less likely than not that the tonsillar cancer was a result of the exposure in service. The expert further noted that because there was no evidence of herbicide exposure, the alcohol and tobacco use were the most likely cause of the Veteran's cancer. In April 2012, the expert provided an additional opinion with respect to the point in time when the Veteran's squamous cell carcinoma was diagnosed. The RO specifically requested an opinion as to whether the tumor was present of the cancer was active prior to separation from service, that is between October 2003 and October 2004 and the likelihood that the tumor was not detected on examination in December 2005. The expert noted that the Veteran's squamous cell carcinoma was diagnosed in August 2007, but the Veteran had testified that he had noticed a lump probably six to eight months or a year after he returned from Iraq. The record showed an examination by an otolaryngologist in December 2005 for right facial symptoms and an MRI and a CT scan in August 2005. On all of these occasions there was no evidence of a mass in the throat or neck and the diagnosis was headache. When the Veteran was diagnosed with cancer in 2007, he described noticing a mass in his neck in March or April 2007, which was later shown on a CT scan. The expert stated that, based on this evidence and the tumor biology of the carcinoma of the tonsil, it was unlikely the tumor was present during the period of October 2003 through October 2004. The Veteran has submitted a significant amount of evidence regarding the burn pits in Iraq and the multitude of possible health problems resulting from exposure to the noxious fumes. At least some of that evidence indicates that the nature of the items being incinerated resulted in air-borne dioxins, a substance quite similar to the toxic agent in many of the herbicides from Vietnam. In addition, there is a great deal of anecdotal and circumstantial evidence indicating that cancer of various kinds has likely been incurred as a result of environmental hazards in Iraq. The Board does not dispute the information supplied by the Veteran or its truthfulness and accepts his zeal in pursuing the issue as an indication of his valid concern regarding these hazards. However, while Congress has established specific laws relating to claims involving exposure to dioxins in herbicides used in Vietnam, those laws do not apply to exposure to similar compounds in Southwest Asia. In addition, at this time, the Department of Defense and other federal agencies charged with maintaining and/or policing the burn pits in use in Iraq have not provided much in the way of evidence regarding them. The nature and concentration of any hazards posed to those in the immediate vicinity have not been thoroughly examined or studied and the information has not been made public. Therefore, the VA is compelled to adjudicate this claim and those like it based only the facts that have been provided. On the basis of the service treatment records, carcinoma of the tonsils was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. With respect to the question of presumptive service connection, the Board notes that the Veteran's first period of service was during the Vietnam War and that some of the records refer to two years of service actually in Vietnam. However, those records appear to be in error, as the JSRRC has been unable to confirm that the Veteran actually set foot in Vietnam and he affirmatively denied exposure to Agent Orange and other herbicides on his claim form. In addition, after the matter was remanded in January 2012 with instructions to verify the Veteran's presence in Vietnam and his exposure to herbicides, with the understanding that herbicide exposure would likely result in presumptive service connection, the Veteran has not submitted any additional evidence or argument to suggest that he actually set foot in Vietnam. As a result, the Board concludes that the Veteran was never actually present in Vietnam and thus was not exposed to herbicides. Presumptive service connection on that basis is therefore denied. 38 U.S.C.A. §§ 1112, 1116. In addition, while presumptive service connection is authorized for specific illnesses and diseases for veterans with qualifying service in the Persian Gulf, squamous cell carcinoma or any form of cancer is not included among them. Rather, presumptive service connection may be afforded for undiagnosed illnesses and chronic multi-symptom illnesses such as chronic fatigue syndrome and fibromyalgia. 38 C.F.R. § 3.317. As squamous cell carcinoma of the right tonsil is a specific diagnosis and is not a chronic multi-symptom illness, presumptive service connection on this basis is also denied. Finally, service connection may be granted under 38 C.F.R. § 3.303(d) for disabilities first manifested after service when the evidence indicates that such disability was contracted in or otherwise the result of service. However, in this case, the evidence does not support such a conclusion. Despite the Veteran's conceded exposure to toxins and environmental hazards during his military service, there is no evidence that his squamous cell carcinoma of the right tonsil was caused or otherwise resulted from his service. The Board notes the opinion of the public health professor from Harvard regarding the toxicity of dioxin and attributing the Veteran's cancer to his exposure to the burn pits in Iraq. However, the record does not indicate that that professor had access to the Veteran's medical records, including those relating to his diagnosis and those detailing his history of smoking and alcohol use. While the Court has made clear that lack of access to the Veteran's records is not in itself sufficient basis for discounting a medical opinion, the Board does consider it important in this instance that an opinion consider the Veteran's personal habits and history, where alcohol and tobacco use are considered by all to be the primary risk factors for head and neck cancer. In addition, the October 2010 and January 2012 expert opinions were rendered by oncologists, physicians specializing in the treatment of cancers. Both opinions were well-reasoned and accounted for the evidence submitted by the Veteran with respect to his exposure to hazardous substances. However, both opinions were also equally clear in saying that the known lengthy history of regular tobacco and alcohol use outweighed the possible effects of a possible short-term toxic exposure. As a result of the clear consideration given to all the evidence and the expert training and experience of the oncologists, the Board affords their opinions greater evidentiary value in this instance. The preponderance evidence demonstrates that the Veteran's squamous cell carcinoma of the right tonsil is less likely than not a result of his military service, to include his exposure to environmental hazards such as the burn pit in Iraq. Rather, the disability is attributable to the Veteran's history of tobacco abuse and regular intake of alcohol, which are the primary risk factors for such cancers. In forming this conclusion, the Board has considered the benefit-of-the-doubt standard of proof and determined that it is not applicable here because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for squamous cell carcinoma of the right tonsil is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs