Citation Nr: 1319934 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-02 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of tonsil cancer, status post tonsillectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1992, including in the southwest Asia theatre of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2008 and in February 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the RO/AMC to obtain additional relevant records and to review this evidence. These records were obtained and associated with the claims file and the RO/AMC reviewed them before issuing a Supplemental Statement of the Case and recertifying this appeal to the Board. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, residuals of tonsil cancer, status post tonsillectomy, is related to active service, to include as due to exposure to environmental hazards. CONCLUSION OF LAW The criteria for service connection for residuals of tonsil cancer, status post tonsillectomy, are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's claim of service connection for residuals of tonsil cancer, status-post tonsillectomy, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends that he incurred his current residuals of tonsil cancer, status-post tonsillectomy, during active service. He specifically contends that he incurred this disability as a result of exposure to multiple potential carcinogens, such as jet fumes, pesticides, oil fires, and other environmental hazards, while serving in the southwest Asia theater of operations during the Persian Gulf War. Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because residuals of tonsil cancer, status-post tonsillectomy, is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background Service personnel records confirm that the Veteran served in the Southwest Asia theater of operation during the Persian Gulf War. These records also show that the Veteran retired in 1992 after nearly 22 years of naval service. His military occupational specialty (MOS) included test pilot and aeronautical engineer. Service treatment records are silent as to complaints, treatment, or diagnoses relating to throat or tonsil cancer. Post-service private treatment records reflect that the Veteran was diagnosed as having squamous cell carcinoma of the left tonsil. He had a left radical tonsillectomy in August 2004. An August 2004 private oncology consultation report noted that the Veteran denied any history of tobacco use but endorsed exposure to plumes of burning oil and smoke while in Desert Storm. The Veteran also reported that he was stationed at a refugee camp in Iraq for approximately 1 year. In October 2004, Dr. S, the Veteran's treating oncologist, submitted a letter indicating that the Veteran had been under his care for tonsil cancer. Dr. S. noted that he had reviewed the Veteran's records extensively and noticed that he had no history of nicotine exposure, alcohol abuse, and/or any significant familial history of malignancies. Dr. S. pointed out that smoking and alcohol were the two more significant risk factors for the development of head and neck cancers. While Dr. S. was unable to state categorically that the Veteran's exposure to various agents during service caused his cancer, he stated that it was not beyond reason that such exposure may have contributed to the development of the Veteran's malignancy. This was especially so in light of the fact that the Veteran did not have any other significant risk factors. In November 2004, Dr. G., the Veteran's treating ear, nose, and throat (ENT) physician, submitted a letter indicating that the Veteran had been under his care for tonsil cancer. Dr. G. stated that the biggest risk factor for head and neck carcinoma was carcinogenic exposure, most commonly tobacco and alcohol. He noted that the Veteran did not smoke or drink. Dr. G. also stated that he had reviewed the Veteran's service record and noted that much of the Veteran's work involved significant exposure to jet fumes, chemicals, pesticides, and gases, which necessitated atropine and pyridostigmine bromide pills. This was in addition to months of exposure to Kuwaiti oil fires. Dr. G. explained "these types of exposures have not been directly linked to cancer "as much as tobacco and alcohol; however, nobody would debate their carcinogenic potential." In light of the Veteran's healthy lifestyle, Dr. G. opined that "it could not be ignored that his service in these environments may have been a contributing factor to his development of cancer." In November 2004, Dr. H., the Veteran's treating oncologist, submitted a letter indicating the Veteran currently was undergoing radiotherapy for invasive carcinoma of the tonsil. He opined that the most typical etiology for those cancers was that of tobacco or alcohol use. He stated that the Veteran did not have either of the aforementioned risk factors other than occasional social alcohol use. Nevertheless, the Veteran had a history of exposure to toxic and carcinogenic fumes while serving in Southwest Asia. Dr. H. noted that, while it was impossible to state the cause of the Veteran's cancer, it was "atypical to have patients with these tumors without other risk factors." As such, Dr. H. opined that it was possible that the Veteran's military service exposure could be related to his cancer. The Veteran underwent a VA respiratory examination in February 2009. The Veteran again reported that he had been exposed to oil fires and would cough up black material during his service in Kuwait; he also noted significant exposure to jet fumes in his capacity as a pilot and safety office. The February 2009 VA examiner stated that he was unable to determine whether the Veteran's tonsil cancer was due to his active service without resorting to mere speculation. The examiner explained that he did not have information relating to the exact agents used during the Veteran's military service and what types of risks they posed in a person's health. In August 2011, the Board obtained a VHA medical opinion. The medical expert opined that the Veteran's squamous cell carcinoma of the left tonsil was less likely as not caused by or a result of his reported exposure to jet fuel/fumes, oil fires, or other claimed agents during service. The VHA examiner reasoned that there was "no conclusive evidence" that exposure to such environmental hazards caused carcinomas of the oropharynx; however, there was a growing body of evidence for the causal effect of human papilloma virus (HPV) on the development of oral cancers. The VHA examiner opined that, in the absence of alcohol or tobacco use, the Veteran's cancer was related to HPV rather than to jet fuel or chemical exposures. Analysis The Board finds that the evidence supports granting the Veteran's claim of service connection for residuals of tonsil cancer, status-post tonsillectomy. The Board notes initially that, although it is required to consider all potential theories of entitlement to service connection, and although the Veteran served in Vietnam and presumably was exposed to herbicides during such service, he does not contend, and the evidence does not show, that service connection is warranted for tonsil cancer based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309 (2012); see also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). The record evidence instead supports a finding that the Veteran's post-service tonsil cancer is related to service on a direct basis. See 38 C.F.R. §§ 3.303, 3.304 (2012). This finding is supported by a careful review of the medical and lay evidence of record, including the Veteran's likely in-service exposure to environmental hazards and carcinogens which is consistent with the facts and circumstances of his service. This finding also is supported by the lack of other predominant risk factors for tonsil cancer as well as the medical statements from the Veteran's treating physician, ENT, and oncologists. The Board has considered the February 2009 VA examination report in which the examiner concluded that an opinion could not be rendered without resorting to speculation. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when an examiner is unable to come to an opinion such "non-opinion" is neither positive nor negative support for a claim of service connection and, therefore, is not probative on the issue of whether the Veteran's residuals of tonsil cancer are related to active service. See Fagan v. Shinseki, 573 F.3d 1282 (Fed Cir. 2009). Accordingly, the Board finds that the February 2009 VA examination is not probative on the issue of whether the Veteran's residuals of tonsil cancer are related to active service. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board also has considered the August 2011 VHA examiner report which concluded that the Veteran's cancer was related to HPV. The Board observes in this regard that none of the medical evidence contained in the claims file reflects that the Veteran has ever complained of, been treated for, or been diagnosed as having HPV. It is unclear why, in the noted absence of predominant risk factors such as alcohol and tobacco use, this VHA examiner would attribute the Veteran's tonsil cancer solely to HPV (which has never been diagnosed in the Veteran). The Veteran's treating physicians and oncologists also never stated that HPV was a relevant risk factor for the Veteran's tonsil cancer. As such, and especially in light of the Court decisions outlined above, the Board finds the August 2011 VHA opinion to be based upon an inaccurate factual premise and it is of little probative value as to the issue of whether the Veteran's residuals of tonsil cancer are related to active service. Id. The Board is left with 3 private medical opinions that, while couched in some speculative terminology, are nonetheless probative to the issue of whether the Veteran's residuals of tonsil cancer are related to active service. This is because Dr. S., Dr. H., and Dr. G, the Veteran's treating physicians (2 of whom are oncologists or cancer specialists) who are familiar with his medical history and cancer pathology, fully discussed the presence and absence of the most significant risk factors for the Veteran's tonsil cancer. These physicians also demonstrated knowledge of the types of carcinogenic agents that the Veteran likely was exposed to while on active service in the southwest Asia theater of operations during the Persian Gulf War. All of these physicians recognized that the Veteran's exposure to these chemicals/gases/carcinogens during such service at the very least could have contributed to the development of his tonsil cancer. The Board again recognizes the slightly speculative nature of these opinions. There is no doubt that further medical inquiry could be undertaken in this case. Having found the August 2011 VHA examiner's opinion to be of little probative value, and in the absence of evidence to the contrary, the Board also finds that the 3 private medical opinions from Dr. S., Dr. H., and Dr. G., taken as a whole, support the conclusion that the Veteran's cancer is related etiologically to his exposure to environmental hazards in-service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for residuals of tonsil cancer, status post removal of the tonsil, is warranted. See also 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for residuals of tonsil cancer, status post tonsillectomy, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs