Citation Nr: 1318936 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-09 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the tonsil, including as due to exposure to herbicides, for accrued benefits purposes. 2. Entitlement to a rating in excess of 30 percent for internal derangement, right knee, for accrued benefits purposes. 3. Entitlement to service connection for a left knee disorder, including as secondary to internal derangement, right knee, for accrued benefits purposes. 4. Entitlement to service connection for a right shoulder disorder, including as secondary to internal derangement, right knee, for accrued benefits purpose. 5. Entitlement to service connection for liver cancer, for accrued benefits purposes. 6. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert W. Gillikin, Attorney WITNESSES AT HEARING ON APPEAL Appellant, son ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. The Veteran died on July [redacted], 2010. The appellant is the Veteran's surviving spouse. After the Veteran's death, she requested substitution as appellant in accordance with 38 U.S.C.A. § 5121A which permits a spouse to be substituted as appellant on claims pending at the time of the Veteran's death on or after October 10, 2008. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Regional Offices (ROs) in Philadelphia, Pennsylvania and Roanoke, Virginia. The case comes to the Board from the RO in Roanoke, Virginia. The appellant testified before the undersigned Veterans Law Judge at a March 2012 hearing. After the hearing the appellant changed representatives. The new representative, listed on the title page contacted the Board for an extension of time. He was granted a requested period of 90 days from January 4, 2013. The time period has passed and no additional argument of evidence has been received. The Board will therefore proceed with consideration of the appeal. The Board notes that the appellant's claims for service connection for a liver disorder for accrued benefits purposes and for service connection for the cause of the Veteran's death were denied in a July 2011 rating decision. At the hearing that was held in March 2012, less than one year after the rating decision, the appellant's representative at that time indicated disagreement with the decisions denying service connection for liver cancer for accrued benefits purposes and denying service connection for the cause of the Veteran's death. The Board will accept the transcript of these proceedings as a notice of disagreement with respect to these issues. Therefore, the issues of entitlement to service connection for liver cancer for accrued benefits purposes and entitlement to service connection for the cause of the Veteran's death are REMANDED to the RO. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. At the Veteran's hearing in March 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through her representative, that a withdrawal of her appeal on the issues of service connection for a right shoulder disorder and a left knee disorder, and for a rating in excess of 30 percent for a right knee disorder for the purposes of accrued benefits, is requested. 2. The Veteran's tonsil cancer was not shown to have been at least as likely as not caused or made worse by the Veteran's service, including exposure to herbicides. Cancer was not demonstrated within 1 year following separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant or her authorized representative with respect to the issues of service connection for a right shoulder disorder and a left knee disorder, and for a rating in excess of 30 percent for a right knee disorder for the purposes of accrued benefits, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). 2. Squamous cell carcinoma of the tonsil was not incurred in or aggravated by service and carcinoma may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2010). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, through her representative at the time, has withdrawn the appeal with respect to the issues of service connection for a right shoulder disorder and a left knee disorder, and for a rating in excess of 30 percent for a right knee disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this these issues and it is dismissed with respect to these issues. Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the appellant must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, during the Veteran's lifetime he was sent a letter in March 2008 which explained what the evidence needed to show to establish service connection for a claimed disability. It also explained the ways that VA could assist the claimant with obtaining evidence in support of the claim and explained how VA assigns disability ratings and effective dates. In April 2011 the appellant was sent a letter which explained the criteria for receiving accrued benefits. This letter likewise informed the appellant of the ways in which VA could help her obtain evidence in support of her claim. She has been informed that she had been substituted as the appellant for pursuit of these claims. In addition to providing various notices, VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and a private physician's letter. VA also obtained an expert medical opinion addressing the etiology of the Veteran's tonsillar cancer. For these reasons, the Board concludes that the requirements of the VCAA were met in this case. Service connection The appellant contends that the Veteran's tonsillar cancer was caused by his exposure to herbicides in Vietnam. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including carcinoma, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to claims alleging disability due to exposure to herbicides, a Veteran who served in active military, naval, or air service in Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore Vietnam and service in other locations if the conditions of service required the Veteran to perform duty in, or visit, Vietnam. 38 U.S.C.A. § 1116(f), 38 C.F.R. § 3.307(a)(6)(iii). However, service in Vietnam does not include service that took place exclusively in the territorial waters offshore Vietnam, if the Veteran never set foot on land there. See Haas v. Peake, 544 F.3d 1306, 1308-1309 (Fed. Cir. 2008), cert. den. 129 S.Ct. 1002 (2009). If a Veteran was exposed to a herbicide agent, certain diseases listed at 38 C.F.R.§ 3.309(e) will be considered service connected even though there is no record of such disease in service. Although the Veteran spent approximately five weeks in Vietnam, cancer of the tonsils is not one of the diseases associated with exposure to herbicides. VA determined that there is no positive association between exposure to herbicides and any condition other than those for which the Secretary specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994), 61 Fed. Reg. 41442-41449,. 57586-57589 (1996). Notwithstanding the foregoing, a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran's service treatment records do not show any diagnosis of, or treatment for, cancer of the tonsils. The evidence indicates that the Veteran was diagnosed with squamous cell carcinoma of the tonsil, metastatic to neck nodes, in December 2007 by a private physician. He was treated with radiation therapy and chemotherapy. During his lifetime, the Veteran submitted a letter, dated in April 2010, from a private physician. The private physician indicated that he saw other patients who were exposed to herbicides develop cancer of the head and neck. The physician wrote that it was entirely possible that the Veteran's cancer may have been related to his exposure to herbicides, but noted that head and neck cancers are typically associated with smoking. VA treatment records indicate that the Veteran reported that he was a smoker, but he quit some time in 2006. The Veteran died of hepatocellular carcinoma due to or as a consequence of cirrhosis in July 2010. A hearing was held in March 2012 that was attended by the appellant and her son. However, they did not provide any additional information about the etiology of the Veteran's cancer of the tonsil. During that hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the appellant and her then representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103 (c)(3). VA requested an expert medical opinion addressing the etiology of the Veteran's squamous cell carcinoma of the tonsil. The expert opined that it was not at least 50 percent likely that the Veteran's tonsil cancer was caused by his exposure to herbicides. She opined that the more likely cause of his tonsil cancer was his significant history of smoking and alcohol use. Smoking and alcohol consumption are the most frequently associated risk factors for cancers of the head and neck. While environmental toxins can potentially contribute to the development of head and neck cancers, this has not been well established. Tonsillar cancer is not one of the diseases specifically recognized as being associated with herbicide exposure. Smoking and alcohol use are more established risk factors for tonsil cancer and were significant factors in this Veteran's history. The evidence does not show it is at least as likely as not that the Veteran's squamous cell carcinoma of the tonsil was related to his military service, including exposure to herbicides. It is not one of the diseases which VA has recognized are associated with herbicide exposure. Moreover, the expert reviewer determined that the Veteran's tonsillar cancer was less likely than not associated with herbicide exposure and more likely associated with the well recognized risk factors of smoking and alcohol use which were significant in this Veteran's history. While the Veteran's private physician opined that it was possible that the Veteran's cancer of the tonsil was associated with his herbicide exposure, this opinion was speculative. An opinion that is speculative has limited probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127-128 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) ( a medical opinion that a particular event "may" have led to the Veteran's disability is too speculative to establish a causal relationship)). The private physician did not opine that it was at least as likely as not that the Veteran's tonsillar cancer was related to his military service including exposure to herbicides. Moreover, he also recognized that smoking is more commonly associated with cancer of the tonsil. For these reasons, the VA expert's medical opinion is more probative than that of the private physician. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the service connection for squamous cell carcinoma of the tonsil is denied. ORDER The appeal of entitlement to a rating in excess of 30 percent for internal derangement, right knee, for accrued benefits purposes, is dismissed. The appeal of entitlement to service connection for a left knee disorder, including as secondary to internal derangement, right knee, for accrued benefits purposes, is dismissed. The appeal of entitlement to service connection for a right shoulder disorder, including as secondary to internal derangement, right knee, for accrued benefits purposes, is dismissed. Service connection for squamous cell carcinoma of the tonsil is denied, for accrued benefits. REMAND As noted in the introduction, the Board has accepted the transcript of the contentions of the appellant's representative at the March 2012 hearing regarding dissatisfaction with the denial of service connection for liver cancer and denial of service connection for the cause of the Veteran's death as a notice of disagreement as to these issues. An unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of an SOC. Malincon v. West, 12 Vet. App 238, 240-241. These claims are remanded for issuance of a statement of the case. See 38 C.F.R. §§ 3.160(c), 19.26 (2008). Accordingly, the case is REMANDED for the following action: Issue the appellant and her representative a statement of the case addressing the issues of service connection for liver cancer for accrued benefits purposes and service connection for the cause of the Veteran's death. The appellant and her representative should be informed of the actions necessary to perfect a substantive appeal as to these issues. Then, if indicated, and if the appellant perfects a timely appeal of the outstanding issues, this case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs