Citation Nr: 1320373 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-23 334A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the base of the tongue. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran presented testimony at a videoconference hearing before the undersigned in February 2013. Notably, that hearing did not address the issue of entitlement to TDIU. In May 2013, the Board sent the Veteran a letter informing him of his right to a new hearing on that issue, but the Veteran failed to respond. It was indicated that if he did not respond, that would be taken as an indication that he wanted no further hearing. Therefore, no further hearing was scheduled. At his February 2013 hearing the Veteran's representative indicated that the Veteran's appeal was for service connection for cancer of the base of the tongue and cancer of the trachea. The undersigned agreed to discuss the issue of cancer of the trachea at the hearing, but made clear that "our issue [to be considered at the hearing] is entitlement to service connection for carcinoma of the base of the tongue. . . ." See Hearing Transcript, February 14, 2013, at 2. Consistent with that discussion at the hearing, the issue of entitlement to service connection for cancer of the trachea is not on appeal. In October 2010, the Veteran made a separate claim for cancer of the trachea. The RO denied that claim in June 2011, and although the Veteran filed a timely notice of disagreement, he failed to perfect his appeal following the issuance of a statement of the case. 38 C.F.R. §§ 20.200; 20.202 (2012). Therefore, to the extent that the Veteran has a diagnosis of cancer of the trachea, that issue is not presently before the Board. The Board has reviewed the Virtual VA paperless claims processing system in its consideration of the present appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's cancer of the base of the tongue did not begin during service and is not the result of an event or injury incurred during service, including his exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for a cancer of the base of the tongue have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent a letter in April 2008 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment. VA has not provided the Veteran with an examination to determine the etiology of his tongue cancer, but none is necessary. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the service treatment records are silent as to any complaints or treatment for cancer. Moreover, the post-service evidence does not indicate any complaints or treatment referable to tongue cancer until several years following separation. The earliest the Veteran asserts that he had symptoms that could be related to his cancer is 1995; medical records indicate that the onset of the disease was in 2007. Even accepting the Veteran's assertion for purposes of this discussion, the first symptoms of his cancer began twenty-five years following service. Furthermore, the record contains no competent evidence suggesting a causal relationship between the current disability and active service. The Veteran claims the disease is due to herbicide exposure in Vietnam, but, as discussed in detail below, the Veteran is not competent to assert such a medical nexus, and there is no other competent evidence suggesting a relationship between his herbicide exposure and his development of carcinoma of the base of the tongue. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Veteran's statements in support of the claim are of record, including testimony provided at a February 2013 videoconference hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 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 considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a compensable degree within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), but does not include cancer of the tongue. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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 Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Concerning the Veteran's claim for service connection for cancer of the base of the tongue, the Veteran's service treatment records are devoid of any treatment for any type of cancer. Further, his May 1970 separation examination noted a normal mouth and throat. The Veteran has not contended that his cancer began during his active duty service, and there is no evidence to suggest that it did. The Veteran's stated during his February 2013 videoconference hearing that he developed symptoms of tongue cancer in approximately 1995. While the Veteran is competent to identify observable symptoms, such as the growth of a mass on his neck, the Board notes that subsequent records from 2007 and 2008 indicate that the Veteran then indicated that he only developed symptoms in 2007. Further, VA health records from 2000 failed to indicate that the Veteran had a history of any type of cancer. The Board finds that, as a cancer diagnosis is an issue requiring complex medical knowledge, the record makes clear that the Veteran was first diagnosed with tongue cancer in 2008. See Kahana, 24 Vet. App. at 433. Beginning in 2007, the Veteran developed a growth in his neck region. The Veteran underwent a whole body PET/CT scan in December 2007, which identified changes within the left base of the tongue and the left neck. A January 2008 surgical pathology note indicated that the Veteran had a "bottom of tongue lesion neck mass," which was diagnosed as a left basal tongue lesion (invasive moderately to poorly differentiated squamous cell carcinoma). A January 2010 CT scan demonstrated a newly developed left posterior tongue base defect. Following laryngoscopy, esophagoscopy, and bronchoscopy procedures in February 2010, the Veteran underwent a resection of the nodal disease. The diagnosis of the Veteran's cancer was a metastatic squamous cell carcinoma. In April 2010, the Veteran was seen for a new anterior lower neck mass; preliminary pathology indicated that the mass was a squamous cell carcinoma. A January 2011 radiation treatment note indicated that the Veteran necessitated continued radiation therapy due to a metastatic squamous cell carcinoma. According to a February 2011 treatment note from the University of Oklahoma Radiation Oncology department, the Veteran had experienced a right anterior neck recurrence of tumor; pathology demonstrated that the growth was a metastatic tumor from a squamous cell carcinoma. Based on the foregoing, it is evident that the Veteran has had a confirmed diagnosis of carcinoma of the base of the tongue. Thus, he meets the first criteria for service connection, a current disability. 38 C.F.R. § 3.303. The Veteran contends that his squamous cell carcinoma of the tongue is the result of his exposure to the herbicide Agent Orange while in Vietnam. Although the Board concedes that the Veteran served in Vietnam, and thus is presumed to have been exposed to herbicides, 38 C.F.R. § 3.307(a)(6)(iii), exposure to herbicides is insufficient in this instance to establish service connection on a presumptive basis, as cancer of the tongue is not a cancer for which presumptive service connection is warranted. 38 C.F.R. § 3.309(e). In addition to the fact that no doctor or medical professional has provided an opinion linking the Veteran's tongue cancer to his exposure to Agent Orange, the Secretary has determined, based on reports of the National Academy of Sciences, that there is no basis for a presumption of service connection for oral cancers (including the tongue). See 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010). While the evidence suggests that the Veteran has had some metastasis of that cancer, including the development of "pre-laryngeal [squamous cell carcinoma]," the pathology of his tumors (see, e.g., February 2011 University of Oklahoma note) indicated that those tumors were metastases of the tongue cancer. Notably, presumptive service connection refers to the primary cancer cite and not to any possible metastatic sites. Ramey v. Brown, 9 Vet. App. 40, 44 (1996). Thus, even if his carcinoma of the base of the tongue metastasized to areas such as the larynx, for which presumptive service connection may otherwise be warranted under 38 C.F.R. § 3.309(e), service connection could not be granted on a presumptive basis due to the location of the primary cancer. Thus, service connection for carcinoma of the base of the tongue is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Board must also consider whether there is evidence of direct service connection, i.e., that his disability began during service, or is due to an event or injury in service. 38 C.F.R. § 3.303. Such an "event or injury" in service can include exposure to herbicides such as Agent Orange, if there is competent evidence directly linking that exposure with the diagnosis. As noted above, the service treatment records are devoid of any diagnosis of cancer or symptoms subsequently associated with cancer. No medical professional has linked the Veteran's carcinoma of the base of the tongue to his service. The Board appreciates the Veteran's contentions linking his cancer to his Agent Orange exposure in Vietnam, but he is not competent to provide such an etiology opinion; such an opinion requires medical training of which there is no evidence that the Veteran is in possession. Jandreau, 492 F.3d at 1376-77. Similarly, the Veteran's representative attempted at the February 2013 hearing to assert that cancer of the tongue should be considered a cancer of the respiratory tract, since when we breathe air passes the tongue. Again, an opinion such as the categorization of a type of cancer is of the type that requires specific medical knowledge; the representative is not competent to provide such evidence. Id. The Board has considered the Veteran's contention that his cancer symptoms began in 1995. Previously in this decision the Board addressed the fact that the evidence shows the onset of the cancer symptoms in 2007, with a diagnosis of cancer in January 2008. Regardless of that fact, however, whether the Veteran's tongue cancer symptoms began in either 1995 or 2007 does not affect his claim. Even if the symptoms began in 1995, that is twenty-five years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Without evidence showing that his carcinoma of the base of the tongue began during service, or evidence linking his cancer to an event or injury in service, direct service connection is not warranted. 38 C.F.R. § 3.303. In conclusion, considering the in-service records as well as the post-service treatment records, there is no evidence to suggest that the Veteran's carcinoma of the base of the tongue began during service, or is related to an event or injury during service, including the exposure to herbicides such as Agent Orange. Therefore, service connection for carcinoma of the base of the tongue is not warranted, on either a direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for carcinoma of the base of the tongue is denied. REMAND The Veteran's claim of entitlement to TDIU must be remanded for an addendum opinion addressing his employability. There are two opinions of record addressing the Veteran's employability, both of which are insufficient to determine the issue. According to a May 2010 posttraumatic stress disorder (PTSD) examination, a disability for which the Veteran has a 70 percent disability rating, the Veteran was "unable to establish and maintain effective work/school and social relationships because [he was] not employable." Despite that statement, consideration of the entirety of the examination report demonstrates that the May 2010 examiner did not make a finding that the Veteran was unemployable due to his PTSD. Rather, previously in the report, the examiner stated that the Veteran's unemployment was "not due to the effects primarily of a mental condition." Subsequently, VA sought a second opinion concerning the Veteran's employability. According to a May 2012 PTSD examination report, the Veteran experienced difficulty in establishing and maintaining effective work and social relationships, as well as difficulty in adapting to stressful circumstances, including work or a worklike setting. Despite these findings, the examiner was "unable to comment on whether the [V]eteran is unable to secure and maintain gainful employment." The examiner stated that "[e]xamples of the PTSD's functional impairment includes irritability, angry outbursts and difficulty concentrating which would severely impact sedentary or occupational functioning." The examiner thus suggested that the Veteran may be prevented from obtaining and maintaining substantially gainful employment due to his PTSD, but the refusal to reach that conclusion casts doubt on such a finding. Notably, the examiner failed to adequately explain why she could not provide an opinion regarding the Veteran's employability. In Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), the United States Court of Appeals for Veterans Claims (Court) examined "how thoroughly . . . an examiner [must] . . . explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered 'without resort to mere speculation.'" In its ruling, the Court stated that an examination report "should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge . . . or that the actual cause cannot be selected from multiple potential causes." Id. at 390. Also, the examiner failed to discuss the impact of the Veteran's PTSD symptomatology on his employment in relation to his educational background or his employment history. Thus, the Board must return the claims file to the May 2012 examiner to request that she provide a fully supported opinion addressing the impact of the Veteran's PTSD symptomatology on his ability to establish and maintain substantially gainful employment. If the examiner is still unable to provide such an opinion, she must more clearly indicate why no opinion was possible based on the facts presented. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who provided the May 2012 PTSD examination. The examiner should review the claims file, this remand, and relevant records on the Virtual VA system. The ensuing addendum opinion should indicate that such a review occurred. Thereafter, the examiner should provide an opinion addressing whether the Veteran is able to obtain or maintain employment due only to his service-connected psychiatric disability, (or coupled with his hearing loss) consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. The examiner must provide a full explanation for all opinions expressed. If the examiner is unable to provide the requested opinion without resort to speculation, she should explain why such an opinion would be speculative. If the May 2012 examiner is no longer available to VA, a similarly qualified medical professional should provide the requested opinion. VA should provide a new examination for the Veteran only if a medical professional indicates that such an additional examination is required. As needed, all service connected disorders should be evaluated. 2. After the development requested has been completed, the RO/AMC should review the opinion obtained to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. If additional examination of other service connected disorders is indicated, such examinations should be conducted. 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs