Citation Nr: 1327695 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-26 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for tonsillar cancer, claimed as cancer of the throat and larynx. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1969 to August 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran's wife's submitted a statement in October 2010 describing the Veteran's need for her assistance in many activities of daily living, taken together with other submissions, constitutes an informal claim for special monthly pension based on need for aid and attendance of another. 38 C.F.R. § 3.155 (2012); Kessel v. West, 13 Vet. App. 9 (1999); See 38 U.S.C.A. §§ 1521 , 5107 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). This informal claim has not been addressed by the RO, and is accordingly referred for appropriate action. FINDINGS OF FACT 1. The cancer for which the Veteran claims entitlement to service connection is a tonsillar carcinoma. 2. Tonsillar carcinoma was not present until many years after the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW Tonsillar cancer was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided complete VCAA notice in a letter sent in October 2010, prior to the initial adjudication of the claim in January 2011. The record also reflects that the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent authorization was provided. Neither the Veteran nor his representative has identified any additional, outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that no VA examination was provided and no VA opinion has been obtained in response to the claim. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran is claiming that he has cancer of the throat or larynx for which presumptive service connection is warranted based on his exposure to Agent Orange in service. As explained below, it is clear from the medical evidence that he has tonsillar cancer, rather than cancer of the throat or larynx. Tonsillar cancer is not subject to presumptive service connection based on Agent Orange exposure. In addition, there is no evidence suggesting that the tonsillar cancer was present in service or until many years thereafter. Moreover, there is no competent evidence indicating that the cancer may be associated with the Veteran's active service or with another service-connected disability. Therefore, the medical evidence of record is sufficient to decide the claim, and VA is not obliged to provide an examination or obtain a medical opinion in response to the claim. In sum, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 . Where a Veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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) . Tonsillar cancer is not among the diseases subject to presumptive service connection on the basis of herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses). See 75 Fed. Reg. 32540 (June 8, 2010), 75 Fed. Reg. 81332 -81335 (December 27, 2010). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). 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 (West 2002); 38 C.F.R. § 3.102 (2012); 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), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis In a submitted argument dated in July 2012, the Veteran's authorized representative contended that the Veteran's cancer was a cancer of the neck, and/or a cancer fitting within the ambit of respiratory cancers recognized as presumptive cancers for service connection on the basis of Agent Orange exposure, and/or a non-Hodgkin's lymphoma and thus also entitled to presumptive service connection on the basis of Agent Orange exposure. 38 C.F.R. § 3.309(e). In short, the representative endeavored to differentiate the Veteran's claimed cancer from the diagnosis which medical examiners have assigned to it, namely a squamous cell tonsillar carcinoma. As noted above, the Secretary has specifically clarified that tonsillar cancer is not included among respiratory cancers for which presumptive service connection applies, and the Secretary further clarified that presumptive service connection on the basis of Agent Orange exposure is specifically not warranted for tonsillar cancer. 75 Fed. Reg. 32540 (June 8, 2010), 75 Fed. Reg. 81332 -81335 (December 27, 2010). While the Board has considered the representative argument, he has neither submitted or identified any evidence showing that the Veteran has a cancer subject to presumptive service connection on the basis of herbicide exposure. The medical evidence in this case is clear. There is no diagnosis of non-Hodgkin's lymphoma or of any primary cancer of the respiratory system, to include the larynx. The evidence shows that the cancer has metastasized to lymph nodes, but does not suggest that the cancer originated in any site other than the tonsil. Therefore, presumptive service connection is not warranted on the basis of herbicide exposure. The evidence does not show and the Veteran has not contended that the cancer was manifested within one year after the Veteran's discharge from service. Therefore, service connection is not warranted on the basis of the chronic disease presumption. With respect to whether service connection is warranted on a direct basis, the Board notes that there is no evidence suggesting that the cancer was present in service or until many years thereafter. The evidence shows that the tonsillar cancer was not discovered until 2009, nearly four decades following the Veteran's separation from service in August 1970. In addition, there is no competent evidence of a nexus between the cancer and the Veteran's active service, to include his exposure to herbicides in service. While the Veteran might sincerely believe that the cancer is due to his exposure to herbicides, his lay opinion concerning this matter requiring medical expertise is of no probative value. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's claimed cancer. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tonsillar cancer, claimed as cancer of the throat and larynx, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs