Citation Nr: 1320695 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-32 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for squamous cell carcinoma of the head and neck, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from October 1965 to March 1969. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision issued in August 2011 by the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. In February 2013, the Board remanded this issue to the RO, via the Appeals Management Center (AMC), and requested that the Veteran be afforded an appropriate VA examination; a medical opinion was also to be sought. This examination (with included opinion) was conducted in March 2013. The examination report has been associated with the Veteran's claims folder. Substantial compliance with the February 2013 remand directives having been accomplished (see Stegall v. West, 11 Vet. App. 268 (1998)), an additional remand of this matter is not necessary. Id. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era; exposure to herbicides is presumed. 2. The Veteran's currently diagnosed squamous cell cancer of the head and neck is not among the disabilities for which presumptive service connection for herbicide exposure may be warranted. 3. Squamous cell cancer of the head and neck did not have its onset during service, is not presumed to be due to exposure to herbicides, and is not shown by competent medical, or competent and credible lay evidence to be related to any in-service injury or disease, including exposure to herbicides. CONCLUSION OF LAW Squamous cell cancer of the head and neck was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated, including as a result of exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), (e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a March 2011 letter, issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. He was also advised of how disability ratings and effective dates are assigned. Duty to Assist The information and evidence that have been associated with the claims file includes the Veteran's service treatment records, private treatment records, a VA examination report (including opinion), and the Veteran's statements. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The March 2013 examination report in the file reflects that the examiner reviewed the Veteran's past medical history, including the service treatment records, documented his current medical conditions, and rendered appropriate diagnoses and opinions with rationale, consistent with the remainder of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that the examination report, and the included findings/opinions, is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case. Analysis The Veteran contends that he has squamous cell carcinoma of the head and neck due to his exposure to certain herbicides in Vietnam, to include Agent Orange. See December 2010 VA Form 21-4138. See also December 2010 VA Form 21-526. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The diseases that are related to herbicide exposure include chloracne or other acneform diseases consistent with chloracne, Type 2 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, and soft-tissue sarcomas. See 38 C.F.R. § 3.309(e) (2012). The Veteran had service in the Republic of Vietnam from February 1968 to March 1968. As such, he is presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). However, as noted above, squamous cell carcinoma is not a condition for which the Agent Orange presumption is available. See 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Board will proceed with its consideration of this matter based on the holding in Combee. Review of the medical record shows that treatment records included therein reveals that the Veteran has been diagnosed with skin cancer of the head and neck. Specifically, the medical record includes numerous private medical records, first dated in 2010, involving extensive findings relating to treatment afforded the Veteran. Of particular note, a December 2010 letter from a private physician, L.J.W., indicates that he had been treating the Veteran for squamous cell carcinoma of the head and neck (SCCHN) involving the buccal mucosa, and alveolar ridge with extensive cranial nerve involvement. The Veteran's staging was noted to be "T4N0M0." The physician added that the Veteran had been treated with three induction cycles of chemotherapy followed by weekly concurrent chemoradiation. While the Veteran was noted to presently appear to be free of disease, the physician commented that he remained at risk for recurrence in the future. Subsequently dated private medical records show that the cancer did in fact return. The physician also pointed out that the Veteran had served in the Vietnam War, during which time he was exposed to Agent Orange. He added that there was "ample causal evidence that exposure to agent orange increases the risk of many cancers, including SCCHN." The Veteran's service treatment records are negative for any complaints of skin cancer or other skin disorders. However, the Veteran has not alleged that his skin cancer began in service; rather, he claims that he was exposed to Agent Orange in service, and that as a result developed his squamous cell carcinoma. As noted above, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to Agent Orange. Although in-service exposure to Agent Orange is conceded and while a current disability has been established, as noted above, the Board notes, as it did in February 2013, that this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's presumed in-service herbicide exposure and his current skin cancer. See Davidson. As noted, the evidence of record confirms that the Veteran was in Vietnam from February to March 1968, and, as also noted, he is presumed to have been exposed to Agent Orange while serving in Vietnam. While the evidence does not warrant presumptive service connection for skin cancer (see 38 C.F.R. §§ 3.307(a)(6), 3.309(e)), the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee. The Board therefore concluded in February 2013 that it was necessary to provide the Veteran a VA examination prior to its attempting to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board in February 2013 determined that the above-cited December 2010 private medical opinion, while establishing that "ample causal evidence" existed relating to the increased risk of developing SCCHN as a result of being exposure to Agent Orange, did not include a discussion as to what exactly the physician was referring to by his use of the words "ample casual evidence." This language, in the Board's opinion (as found in February 2013), amounted to insufficient competent evidence necessary for a decision to be made at this juncture. Thus, the Board at that time found that a VA examination was needed to determine whether the Veteran has a current disorder (or, if not current, such a disorder has been shown to have been manifested during the course of the Veteran's appeal; see McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brokowski v. Shinseki, 23 Vet App 79 (2009)) manifested by SCCHN, and, if so, whether it is at least as likely the result of his active military service, to include as due to exposure to herbicides such as Agent Orange during his service in Vietnam, as it is to some other cause or factor. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination scheduled pursuant to the Board's February 2013 was conducted in March 2013. The report is shown to be clearly and adequately responsive to the instructions set out in the Board's February 2013 remand. The examining physician commented that he had had an opportunity to review the Veteran's medical records. After examining the Veteran, a diagnosis of squamous cell cancer of the head and neck involving the right buccal mucosa, right retromolar trigone and alveolar ridge was provided. This cancer was reported to have been diagnosed in 2009. This is about 40 years after the Veteran's service separation. The examiner opined that it was less likely than not that the Veteran's claimed squamous cell cancer of the head and neck was incurred in or caused by an in-service injury, event, or illness. The examiner pointed out that squamous cell skin cancer and squamous cell cancer of the head and neck were two distinct conditions. The examiner further opined that the Veteran did not have squamous cell skin cancer. The examiner added that the evidence included no evidence that the Veteran's squamous cell cancer of the head and neck was incurred in military service. To this, he mentioned that the symptoms began in 2008. He added also, and of particular note, that squamous cell cancer of the head and neck was not considered to be an Agent Orange-related condition. The examiner observed that the Veteran did not have laryngeal cancer, which was an Agent Orange-related disorder. The examiner also, in citing to the MD Anderson Manual of Medical Oncology, reported that "there has been a clearly documented association with tobacco and alcohol use." He added that "Cancers of the oral cavity, larynx, and hypopharynx are uncommon in persons with no smoking history." The examiner observed that the Veteran had significant alcohol use since 1996, and tobacco use to the present. To this, the examiner concluded that it was less likely as not that the Veteran's squamous cell cancer of the head and neck was either incurred in military service or the result of Agent Orange exposure. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the United States Court of Appeals for Veterans Claims (Court) stated: 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 that 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 adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board finds that the March 2013 VA medical opinion is more probative than the above-discussed December 2010 private opinion offered by Dr. L.J.W., in which he found that there was "ample casual evidence that exposure to agent orange increases the risk of many cancers, including [squamous cell cancer of the head and neck]." As was noted by the Board in February 2013, this private medical opinion was too speculative to be considered either a positive or negative etiological opinion. On the other hand, the March 2013 VA opinion, wherein the examiner relied, in his examination of the Veteran, not only upon a review of the all the available medical records, but also on pertinent medical literature regarding likely etiologies of squamous cell carcinoma affecting the oral cavity. The VA examiners' opinion is detailed, thorough, and consistent with the evidence of record. In contrast, it does not appear that Dr. L.J.W., while a treating physician of the Veteran, was able to view the Veteran's claims folder, including the Veteran's full medical history, which the Board believes is relevant to this case as it documents the progression of the Veteran's squamous cell carcinoma of the head and neck. She also did not reference any medical textbooks or journal articles in support of her conclusions, as the VA examiner did. The facts of the Veteran's particular medical history were considered by the VA examiner who provided the negative opinion in March 2013. With respect to the Veteran's contentions that his squamous cell carcinoma of the head and neck is due to exposure to herbicides, the Board finds that a diagnosis of squamous cell carcinoma of the head and neck is of such medical complexity that it is not subject to lay diagnosis. The record does not indicate that the Veteran has had medical training so as to render him competent to provide a diagnosis of his claimed disorder in service, or subsequent to service prior to 2010. Nor is he competent to provide an opinion which etiologically relates the disorder to his presumed in-service exposure to Agent Orange. To this, the Board observes that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A determination of whether squamous cell carcinoma is associated with exposure to Agent Orange is of such medical complexity that it is not subject to lay opinion. In this regard, the record does not establish that the Veteran has received any medical training which would render him competent to render an opinion in this regard. Hence, the Veteran's statements offered in support of the claim do not constitute competent medical evidence and are also lacking in probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In view of the foregoing, the Board finds that the preponderance of the evidence of record is against service connection on a presumptive basis, as either a chronic disease or as a disease associated with exposure to Agent Orange, or as otherwise having been incurred in or aggravated by service on a direct-incurrence basis pursuant to 38 C.F.R. § 3.303(a), 38 C.F.R. § 3.303(b) or 38 C.F.R. § 3.303(d). The Veteran has not submitted any competent and probative medical evidence in support of his claim that his squamous cell carcinoma of his head and neck is due to his military service, including exposure to herbicides. Consequently, the Board finds that service connection for squamous cell carcinoma of the head and neck is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hence, the claim must be denied. ORDER Service connection for squamous cell carcinoma of the head and neck, to include as due to exposure to Agent Orange is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs