Citation Nr: 1316703 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-42 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for squamous cell carcinoma of the floor of the mouth. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT Squamous cell carcinoma of the floor of the mouth was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active duty. CONCLUSION OF LAW Squamous cell carcinoma of the floor of the mouth was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 5100, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A November 2008 letter satisfied the duty to notify provisions and notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As to the duty to assist, the Board finds that VA has secured all available and identified evidence including the Veteran's service treatment records and indicated private treatment records. The Board acknowledges that the Veteran was not afforded a VA examination with respect to his claim for service connection for squamous cell carcinoma of the floor of the mouth. A VA examination must be provided when (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006); 38 C.F.R. § 3.159(c)(4); see also 38 U.S.C.A. § 5103A(d)(2). The Board concludes an examination is not needed. The record reveals that the Veteran has a current disability. The medical evidence includes recurrent diagnoses of squamous cell carcinoma and carcinoma of the oral cavity. While the Veteran is presumed to have been exposed to herbicides during his period of active service, the Veteran's squamous cell carcinoma/carcinoma of the oral cavity is not listed as a disease subject to presumptive service connection. In fact, the Secretary has clarified that presumption of service connection is not warranted for cancer of the oral cavity. The service treatment records are absent for any notations or documentation related to the Veteran's mouth. The Veteran has not provided any statements related to continuity of symptomatology, but has merely asserted his belief that his cancer is related to in-service exposure to herbicides. The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service. Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran is not considered competent to provide an opinion as to the etiology of his squamous cell carcinoma as this is a complex medical question. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the Veteran's representative quoted a Dr. Bash in the March 2013 Appellant's Brief. It was noted that Dr. Bash had special knowledge in the area of head and neck cancers as a Board Certified "sub-specialist" and was a senior member of the American Society of Neuro-Radiology (ASNR). Dr. Bash opined that a Veteran's exposure to Agent Orange "likely caused his oropharynx cancer." The nose, mouth, throat, and lungs are all bordered by an epithelium that is a version of modified respiratory epithelium. This epithelium was exposed to the airborne and water born toxins of the environment, such as from Agent Orange which was a powerful carcinogen, resulting in the veteran's squamous cell carcinoma. But for the respiratory cancer, the soft tissue of the floor of the Veteran's mouth would not have presented with squamous cell carcinoma. There is no indication where this quote is from, it is not specific to the Veteran or the facts in the Veteran's case as there is no "oropharynx" cancer and no indication of respiratory cancer. This quotation is not based on any knowledge of the Veteran's medical history or the diagnosis specific to the Veteran. Thus, this quote is not probative of a relationship between the Veteran's disability and his period of active service and does not serve to warrant a VA examination. The Board recognizes that the threshold for finding a link between a current disability and active service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). However, the quotation from Dr. Bash does not meet the low threshold for the reasons outlined above and a VA examination is not required to decide the Veteran's claim. There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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). 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). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of VA, however, has determined 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 Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified 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 the following specific conditions: cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). VA's Secretary has determined that a presumption of service connection based on exposure to certain 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. Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600-42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007). In this case, the evidence confirms that the Veteran served in Vietnam during the prescribed time period. The RO requested the Veteran's dates of service in Vietnam from the National Personnel Records Center (NPRC). In a November 2008 response, the NPRC stated that the Veteran served in Vietnam from March 20, 1969 to March 13, 1970. Therefore, the Veteran is presumed to have been exposed to herbicides. However, squamous cell carcinoma is not among the list of diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). The Board acknowledges the Veteran's contention that his squamous cell carcinoma should be considered to be "soft tissue sarcoma." However, the term "soft tissue sarcoma" is defined by 38 C.F.R. § 3.309(e), Note (1) as the following: Adult fibrosarcoma, dermatofibrosarcoma protuberans, Malignant fibrous histiocytoma, Liposarcoma, Leiomyosarcoma, Epithelioid leiomyosarcoma (malignant leiomyoblastoma), Rhabdeomyosarcoma, 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, and Malignant ganglioneuroma. The Veteran's squamous cell carcinoma is not included under the defined "soft tissue sarcoma." Therefore, service connection is not warranted on a presumptive basis. However, the Veteran can still establish service-connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Circ. 1994). The Veteran contends that his squamous cell carcinoma is related to in-service exposure to herbicides. Although a presumption of service connection based on exposure to herbicides is not warranted, service connection must also be considered on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The service treatment records are absent for any documentation or notations related to the Veteran's mouth. The separation report of medical examination shows that the Veteran's mouth and throat were clinically evaluated as normal. Decades after service, in January 1996, the Veteran was diagnosed with squamous cell carcinoma of the floor of the mouth. The private treatment records made no mention of herbicides or Agent Orange. Specifically, the January 1996 discharge summary from Saint Peter's Medical Center indicated that the Veteran's past medical history was essentially within normal limits, but noted that the Veteran had a history of alcohol intake and smoked one pack of cigarettes per day. The January 1996 operative report shows that the Veteran was diagnosed with squamous cell carcinoma of floor of mouth and the operation consisted of a modified supramohyoid neck dissection and excision lesion floor of the mouth. The subsequent private medical records continue to reveal recurrences of squamous cell carcinoma. The April 2000 pathology report shows a final diagnosis of infiltrating squamous cell carcinoma, moderately differentiated (Grade 2/3), Margin Involved (Anteromedial). The April 2000 operative report shows that the Veteran was diagnosed with squamous cell carcinoma of the floor of the mouth and the operative procedure was excision of the squamous cell carcinoma of floor of the mouth. The March 2002 pathology report indicated that a specimen was positive for squamous cell carcinoma. Again, the April 2002 operative report shows that the Veteran was diagnosed with carcinoma of the oral cavity/recurrent and the operation consisted of a positive resection of the floor of mouth, mandiblectomy, local dental extractions. In December 2006, it was again noted that the Veteran was diagnosed with carcinoma of oral cavity status post resection. The most recent records dated in June 2008 reveal a diagnosis of carcinoma of oral cavity status post radical resection with no visible or palpable disease. In this case, there is no competent medical evidence relating the Veteran's squamous cell carcinoma to active service to include exposure to herbicides. The Board acknowledges the Veteran's opinion that the cancer of the floor of his mouth is related or caused by exposure to herbicides during his period of active service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any carcinoma to active service, include exposure to herbicides, the Board finds that the etiology of a squamous cell carcinoma is a complex medical question and the Veteran is not competent to provide an opinion as to its etiology. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board observes that the Veteran's representative appears to cite a Dr. Bash to attempt to link the Veteran's claimed disability to his in-service exposure to herbicides. It was claimed that Dr. Bash had special knowledge in the area of head and neck cancers as a Board Certified "sub-specialist" and was a senior member of the American Society of Neuro-Radiology (ASNR). Dr. Bash opined that a Veteran's exposure to Agent Orange "likely caused his oropharynx cancer." The nose, mouth, throat, and lungs are all bordered by an epithelium that is a version of modified respiratory epithelium. This epithelium was exposed to the airborne and water born toxins of the environment, such as from Agent Orange which was a powerful carcinogen, resulting in the veteran's squamous cell carcinoma. But for the respiratory cancer, the soft tissue of the floor of the Veteran's mouth would not have presented with squamous cell carcinoma. The Board does not find this quote to be probative as to the issue of etiology in this case. It is unclear where the representative obtained such information as the cited opinion is not included in the claims file nor is it purported to be. This appears to be a general quotation that is not specific to the Veteran's case or based in any knowledge as to the facts of the Veteran's case including his own medical history, diagnosis, and treatment. Again, there is no evidence of "oropharynx" cancer or respiratory cancer. As such, this quotation is not probative as to the etiology of the Veteran's squamous cell carcinoma of the floor of the mouth. The United States Court of Appeals for Veterans Claims (Court) has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Finally, the Veteran has not provided any statements related to continuity of symptomatology nor does the record reflect evidence of continuity of symptomatology since the Veteran's period of active service. Therefore, service connection based on continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). Based on the above, the Board finds that the Veteran's squamous cell carcinoma of the floor of the mouth did not have its onset during service and is not shown to be causally or etiologically related to service. As such, the preponderance of the evidence is against the claim. There is no doubt to be resolved and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, certain diseases, such as a tumor, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. There is no evidence of a tumor within one year of discharge from active duty. Therefore, presumptive service connection is not warranted. ORDER Entitlement to service connection for squamous cell carcinoma of floor of mouth is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs