Citation Nr: 1322064	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  09-40 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for squamous cell cancer of the throat, right tonsil, and tongue, to include as due to exposure to herbicides and as secondary to service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel
INTRODUCTION

The Veteran served on active duty from November 1968 to April 1970.

This matter comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Veteran and his spouse testified before a Decision Review Officer (DRO) in January 2010.  A transcript of this testimony has been associated with the record. 

This matter was previously denied by the Board in October 2011.  That decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court).  In a November 2012 Memorandum Decision, the Court set aside the October 2011 Board decision and remanded the matter to the Board.  As basis for its remand, the Court determined that the record raised the question of whether the Veteran's squamous cell carcinoma was related to his service-connected PTSD; however, was not addressed by the Board in its decision.  In that procedural posture, this matter now returns to the Board.

Pursuant to the Veteran's April 2013 motion, the Board granted an additional 90 days to permit the Veteran to submit additional evidence.  In the motion, the Veteran expressed his intention to waive review of any newly submitted evidence by the agency of original jurisdiction.  Indeed, new evidence consisting of a May 2013 letter from Dr. E.M. of the VA Medical Center in Ann Arbor, Michigan was received and associated with the record.  The Board is now prepared to proceed with its de novo consideration of this matter.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).




FINDINGS OF FACT

The Veteran's squamous cell carcinoma is related to his history of tobacco and alcohol abuse, which in turn, have been shown to have resulted from his service-connected PTSD.


CONCLUSION OF LAW

The criteria for service connection for squamous cell carcinoma of the throat, right tonsil, and tongue, to include as secondary to service-connected PTSD, have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159.  Nevertheless, given the favorable action taken below as to the issue on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time.  Indeed, any such action would result only in delay.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

If certain diseases, such as malignant tumors, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first 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).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

The evidence in this case shows that the Veteran was initially diagnosed with T4 N2c M0 squamous cell carcinoma of the right tonsil and bilateral neck in December 2007.  The treatment records in this case, which include a social history provided by the veteran during an October 1988 VA treatment, a May 1999 psychosocial study by Dr. E.M.T., and a January 2008 VA initial oncology/radiation consultation, document that the Veteran had a 40 year history of smoking at least a half pack of cigarettes per day and a history of alcohol abuse which dated back to his separation from service in 1970.

The evidence in the record suggests that the Veteran's squamous cell carcinoma is likely attributable to his lengthy history of tobacco and alcohol abuse.  In that regard, VA treatment records consistently note the Veteran's history of smoking as a risk factor.  In a May 2011 VHA opinion previously obtained by the Board, Dr. J.Y.B. noted that patients with a history of tobacco and/or alcohol use are at a higher risk for developing head and neck cancers.  In her opinion, she cites a National Cancer Institute finding that tobacco and alcohol use are the most important factors for head and neck cancers and that 85 percent of head and neck cancers are linked to tobacco use.  She also cites a separate study which demonstrated a greater than multiplicative joint effect between tobacco and alcohol on head and neck risk, particularly for oral and pharyngeal cancers, and, estimated that the population attributable risk was 74 percent overall due to smoking and tobacco.  Another study cited by Dr. J.Y.B. suggested that men who both smoke and drink are nearly 38 times more likely to develop head and neck cancers.  Although Dr. J.Y.B. does not offer an express opinion as to whether the Veteran's cancer is related to his history of smoking and drinking, the studies cited in her report would appear to support such a conclusion.

A May 2013 opinion from the Veteran's treating VA psychiatrist, Dr. E.M., notes that the Veteran reported that he began smoking and drinking during service as a method of coping with PTSD symptoms that resulted from his service in Vietnam.  Based upon this reported history, Dr. E.M. concluded that the Veteran's PTSD likely led to his smoking and drinking, which in turn, likely led to his cancer.

Service connection for PTSD has been in effect for the Veteran since May 24, 2004.  The history upon which Dr. E.M. relies in forming his opinion is essentially consistent with the other evidence in the record, which indicates a long history of smoking and alcoholism which began within the timeframe of his active duty service.  Moreover, Dr. E.M.'s opinion that the Veteran's PTSD led to his smoking and drinking is not rebutted by any other evidence in the record.  For these reasons, the Board assigns full probative weight to Dr. E.M.'s opinion in that regard.

The evidence shows that the Veteran's squamous cell carcinoma likely resulted from his lengthy history of tobacco and alcohol abuse, which in turn, likely resulted from his service-connected PTSD.  Accordingly, the Veteran is entitled to service connection for squamous cell carcinoma, and this appeal must be granted.  38 C.F.R. § 3.310.


ORDER

Service connection for squamous cell cancer of the throat, right tonsil, and tongue, secondary to service-connected PTSD, is granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs