Citation Nr: 1318781	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  12-12 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center 
in Wichita, Kansas


THE ISSUE

Entitlement to service connection for squamous cell carcinoma of the sinus, including as due to herbicide exposure in service.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to February 1977, including service in Vietnam, and had subsequent reserve service.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the RO in Wichita, Kansas, that in pertinent part, denied service connection for squamous cell carcinoma of the sinus.

There are other issues that are not currently in appellate status.  In its September 2011 rating decision, the RO granted service connection and a 10 percent rating for diabetes mellitus.  In an October 2012 rating decision, the RO granted service connection and a 70 percent rating for posttraumatic stress disorder (PTSD), and denied service connection for hypertension, erectile dysfunction and high cholesterol.  In a March 2013 rating decision, the RO granted entitlement to a total disability compensation rating based on individual unemployability (TDIU rating).  Since the Veteran did not appeal these determinations, including the assigned ratings or effective dates, these issues are not in dispute.  See 38 U.S.C.A. § 7105; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating a claimant must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection).

Additional pertinent evidence was received from the Veteran and his representative in January 2013.  As the Veteran's representative has since waived initial RO review of this evidence, the Board will consider it.  See 38 C.F.R. § 20.1304. 

FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era; therefore, exposure to an herbicide agent (the dioxin in Agent Orange) is presumed.

2.  The Veteran's squamous cell carcinoma of the sinus developed many years after his military service, and the most probative (meaning competent and credible) medical and other evidence indicates this cancer was unrelated to his service, including his presumed exposure to herbicides during his tour in Vietnam.


CONCLUSION OF LAW

The Veteran's squamous cell carcinoma of the sinus was not incurred in or aggravated by his military service, nor may it be presumed to have been so incurred or aggravated, including as a result of his presumed exposure to herbicides (Agent Orange) in Vietnam.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486. 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, a February 2011 letter was sent to the Veteran prior to the September 2011 rating decision on appeal, i.e., in the preferred sequence.  This letter informed him of the type of information and evidence required to substantiate this claim for service connection, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence.  He was advised, as well, of the downstream disability rating and effective date elements of this claim in the letter.  See Dingess/Hartman, supra. 

So he has received all required VCAA notice concerning this claim.  Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied.

VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's service treatment records, service personnel records, private medical records, VA medical records, internet evidence submitted by the Veteran, and copies of Board decisions relating to other Veterans.  Moreover, as discussed in greater detail below, the Board has determined that the Veteran has not submitted competent evidence linking his diagnosed squamous cell carcinoma of the sinus to a period of qualifying active service.  Thus, the Board finds it unnecessary to remand his claim for a VA examination and nexus opinion.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As noted above, during the pendency of this appeal, the RO has adjudicated other claims, and has reviewed recent VA medical records pertaining to those claims.  These medical records primarily pertain to other disabilities, and are not pertinent to the determinative issue of the etiology of the claimed squamous cell carcinoma of the sinus.  The Board finds that a remand of this appeal for issuance of a supplemental statement of the case as to this additional evidence is not warranted as the evidence is not relevant, and a remand would only produce unnecessary delay and would not serve any useful or meaningful purpose or result in any significant benefit to the claimant.  See 38 C.F.R. § 19.37; Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

The Board concludes that all the available records and medical evidence have been obtained in order to make a determination as to this claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim for service connection for squamous cell carcinoma of the sinus.  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).  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II. Analysis

The Veteran contends that he incurred squamous cell carcinoma of the sinus due to Agent Orange (herbicide) exposure during his service in Vietnam.

The Board has reviewed all 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 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

Malignant tumors will be presumed to have been incurred in or aggravated service if manifested to a compensable degree of at least 10 percent within one year after service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

To establish entitlement to service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); but see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he is presumed to have been exposed to herbicides if he served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence establishing the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 

The diseases presumptively associated with Agent Orange exposure include chloracne or other acneform disease consistent with chloracne, Type II Diabetes, 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) (2012).

In September 2011, the National Academy of Sciences (NAS) issued Veterans and Agent Orange:  Update 2010 (Update 2010).  The Secretary of VA has determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes:  hypertension, cancers 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, cancers of the digestive organs (esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus), hepatobiliary cancers (liver, gallbladder and bile ducts), and pancreatic cancer), bone and joint cancer, melanoma, non-melanoma skin cancer (basal cell and squamous cell), breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate), urinary bladder cancer, renal cancer (kidney and renal pelvis), cancers of brain and nervous system (including eye), endocrine cancers (including thyroid and thymus), leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia), cancers at other and unspecified sites (other than those as to which the Secretary has already established a presumption), reproductive effects (including infertility, spontaneous abortion other than after paternal exposure to TCDD; and - in offspring of exposed people - neonatal death, infant death, stillborn, low birth weight, birth defects (other than spina bifida), and childhood cancer (including acute myeloid leukemia)), neurobehavioral disorders (cognitive and neuropsychiatric), neurodegenerative diseases (including amyotrophic lateral sclerosis, but excluding Parkinson's disease), chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy), respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disease, and farmer's lung), gastrointestinal, metabolic, and digestive disorders (including changes in liver enzymes, lipid abnormalities, and ulcers), immune system disorders (immune suppression, allergy, and autoimmunity), circulatory disorders (other than ischemic heart disease), endometriosis, effects on thyroid homeostasis, hearing loss, eye problems; and bone conditions.  See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442 (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630 (May 20, 2003); 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

When determining service connection, all theories of entitlement - direct, presumptive and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  
The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  A malignant tumor is such a chronic condition under 38 C.F.R. § 3.309(a).  

Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 
See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Turning now to the facts of this particular case.  As already conceded by the RO, the Veteran's exposure to Agent Orange has been presumed based on information in his service personnel records confirming he served in the Republic of Vietnam during the Vietnam era.  See 38 C.F.R. § 3.2(f).

The Veteran contends he incurred squamous cell carcinoma of the sinus due to his military service and, specifically, as a result of his presumed exposure to Agent Orange or other herbicides while stationed in Vietnam. 

The medical evidence on file demonstrates that beginning in November 2010, the Veteran was diagnosed and treated for squamous cell carcinoma of the frontal/ethmoid sinuses.  Therefore, there is competent medical evidence establishing that the Veteran has had a current diagnosis of squamous cell carcinoma of the sinus during the pendency of this appeal.  See McClain, supra.

Resolution of his appeal turns on whether any current squamous cell carcinoma of the sinus, including residuals thereof, is attributable to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

Service treatment records are entirely negative for cancer, including cancer of the sinuses.  On separation medical examination in January 1977, the Veteran's sinuses were listed as normal.  In a January 1977 report of medical history, he denied a history of ear, nose or throat trouble, sinusitis, and tumor, growth, cyst, or cancer.

In August 1978, the Veteran filed his original service connection claim.  The only identified disability was an elbow disability.  He did not claim service connection for a sinus disorder.

On VA general medical examination in September 1978, his nose and sinuses were examined and were normal.  He proffered no complaints regarding his sinuses.

VA outpatient treatment records dated from 2010 to 2011 reflect that the Veteran was initially seen in March 2010, requesting help with his medications.  He took medication for herpetic outbreaks on his nose.  He reported that he was formerly a smoker for 40 years, but quit in 2005.  He did not complain of a sinus disorder, and one was not diagnosed.  An October 2010 primary care note shows that the Veteran had no acute complaints.  A November 2010 nursing note reflects that the Veteran brought in a report of a private eye examination, which showed a diagnostic impression of ectropin bilaterally, with intermittent epiphora, and there appeared to be a thickened nasolar sac above NCT left eye, right eye greater than left eye is noted.  A computed tomography scan was planned to assess the nasal canthal mass/thickening.  A March 2011 note reflects that a November 2010 computed tomography scan of the sinuses showed an ethmoid mass.  

Post-service medical records are negative for cancer until November 2010.  Private medical records from J.R.C., MD, dated from November 2010 to February 2011 reflect that the Veteran was diagnosed with carcinoma of the left ethmoid/frontal sinus in November 2010.  The Veteran reported that he was seen by VA in October 2010, at which time he requested prescription refills, and had no complaints of abnormal tearing, sinusitis, visual changes or headaches.  He was then seen by an ophthalmologist, and began to notice subtle mass effect medial to his right globe, along with occasional epiphora.  He was not aware of associated discomfort. An October 2010 CT scan of the orbits revealed a soft tissue density opacifying the balance of the right frontal/ethmoid sinus complex.  The Veteran underwent surgical exploration in November 2010 and the mass was removed.  The pathology report revealed that the left frontal mass was invasive squamous cell carcinoma of the sinus, and the left paranasal mass contained squamous cell carcinoma in situ.  Specimens were submitted for human papilloma virus (HPV) genotyping.  The Veteran reported that he had reactive airway disease as a child, and a history of chronic/intermittent sinusitis dating back several years.  He said he began smoking at age 16 and quit six years ago.  He smoked one pack per day during most of this time.  

Dr. C. diagnosed stage T2, NX, MX moderately differentiated squamous cell carcinoma of the frontal/ethmoid sinuses, status post gross total resection on November 10, 2010.  He indicated that cancers of the ethmoid sinuses are particularly uncommon, and malignancies of frontal sinuses even more rare.  He opined that based on statistics/probabilities, it was likely that his cancer originated in the left ethmoid region, and subsequently tracked up into the adjacent frontal sinus.  Risk factors for these neoplasms included chronic exposure to nickel and chromium, long-term exposure to hard wood dust, mustard gas exposure, and chronic exposure to solvents/chemicals used in leather and textile processing.  He stated that HPV has also been implicated as an etiologic agent in a minority of sinus cancers.

A December 2010 note by S.W.H., MD, of the Kansas City Cancer Center, reflects that the final pathology report from his sinus surgery showed moderately differentiated invasive squamous cell carcinoma which was positive for high-risk group HPV, and the left nasal content showed squamous cell carcinoma in situ.  The diagnostic impression was T2 N0 squamous cell carcinoma of the sinus.  He opined that the Veteran had had a complete resection.  He said that the fact that the Veteran was HPV positive portended a better prognosis for other head and neck tumors.

In January 2011, the Veteran filed the current claim for service connection for squamous cell carcinoma of the sinus, contending that it was related to Agent Orange exposure.

A February 2011 note by Dr. C. reflects that the Veteran had radiation treatment from December 2010 to early February 2011 after his sinus surgery.

An August 2011 VA outpatient treatment record reflects that the Veteran had been treated for sinus cancer with surgery and radiation without evident residual cancer.  He had been having problems with excessive tearing on the right which is how the tumor was discovered.

In an October 2011 notice of disagreement, the Veteran essentially asserted that his squamous cell carcinoma of the sinus should be a listed presumptive condition under the governing regulations pertaining to Agent Orange exposure.  He reiterated this assertion in a November 2011 statement, adding that if respiratory cancers are presumptive conditions, then carcinoma of the sinus should be as well.  In March 2012, he submitted internet articles about the respiratory system and Agent Orange, and a photocopy of a page from a dictionary including the definition of "respiratory system."

In his May 2010 substantive appeal, the Veteran reiterated his assertions, and again contended that his squamous cell carcinoma of the sinus was a respiratory cancer and should be service-connected on a presumptive basis.

The Board notes that squamous cell carcinoma of the sinus is not among the listed conditions subject to presumptive service connection based on herbicide exposure under 38 C.F.R. § 3.309(e).  Despite the Veteran's assertions that sinus cancer should be considered to be a "respiratory cancer" under this regulation, the Board finds that it is not a respiratory cancer under this governing regulation, which defines respiratory cancers as including only the following:  cancer of the lung, bronchus, larynx, or trachea.  38 C.F.R. § 3.309(e).  Significantly, the Secretary of VA has explicitly determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses).

Moreover, there is no evidence that a malignant tumor of the sinuses was manifested to a compensable degree within the first post-service year, and thus presumptive service connection is also not warranted under 38 C.F.R. § 3.309(a). 

But this only precludes presumptive service connection, not also the possibility of the Veteran establishing this necessary linkage for service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

There are no relevant post-service medical records regarding sinus cancer until 2010, so for more than 30 years after the Veteran's separation from service.  The evidence does not reflect, and the Veteran does not contend, that he had continuous sinus symptoms from service until 2010.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333   (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability).  And there is no competent medical evidence of record linking the Veteran's squamous cell carcinoma of the sinus to service or herbicide exposure in service.

The only evidence of record supporting the contention that the Veteran's squamous cell carcinoma of the sinus is related to his military service, including to his presumed exposure to Agent Orange in Vietnam during the Vietnam era, comes from the Veteran personally by way of statements he has made in support of his claim.  As the Veteran is not shown to have medical knowledge or training regarding carcinoma of the sinus, he is only competent to describe symptoms of his disability; he is not competent to link his squamous cell carcinoma of the sinus to service (to include herbicide exposure in service), as this disease is not the type of condition that is readily amenable to lay diagnosis, much less probative comment regarding its etiology.  Rather, there necessarily has to be supporting medical evidence, which in this instance there is not.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). 

The Board notes that the Veteran's treating private physician listed a number of risk factors for the Veteran's squamous cell carcinoma of the sinus, and did not include herbicides on his list.  Further, he stated that HPV is an etiologic agent for sinus cancer.  Subsequent pathology reports of the Veteran's tumor showed that it was positive for HPV.

The Board notes that the Veteran has submitted various internet articles and a photocopy of the definition of the term "respiratory system" in an attempt to establish a medical nexus between his service and his squamous cell carcinoma of the sinus.  This evidence does not indicate such a link.  Moreover, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element).  Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility").  Here, though, there is no such supporting competent medical opinion, let alone relying on or agreeing with the submitted medical literature to etiologically link the Veteran's squamous cell carcinoma of the sinus to his herbicide exposure in service.

Therefore, in weighing the Veteran's lay assertions against the service treatment records, post-service medical records, and the Secretary's Notice, the Board finds the latter are more probative of the determinative issue of causation.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). 

As there is no evidence in the service treatment records to support direct causation, no manifestation of the cancer within one year of separation from service to support presumptive causation, and insufficient evidence to alternatively support presumptive service connection based on herbicide exposure during the Veteran's Vietnam service, the Board finds that the weight of the evidence is against linking his squamous cell carcinoma of the sinus to his military service. 

For these reasons and bases, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran's squamous cell carcinoma of the sinus developed many years after service, and that this cancer was not caused by any incident of his service - including his presumed exposure to herbicides (the dioxin in Agent Orange).  Thus, there is no basis for granting service connection for this disability.

Finally, although the Veteran has submitted copies of several Board decisions regarding other Veterans, and argues that these decisions have precedential value in his case, the Board must disagree.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for squamous cell carcinoma of the sinus, there is no reasonable doubt to resolve in his favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49   (1990).

ORDER

Service connection for squamous cell carcinoma of the sinus is denied.



____________________________________________
S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs