Citation Nr: 1331041	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  04-21 895	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for cancer of the head and neck, unknown primary site, to include as due to herbicide exposure.

[The issues of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) are the subject of a separate decision by the Veterans Law Judge who conducted a hearing in those matters.]


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers


WITNESSES AT HEARING ON APPEAL

Veteran and his wife
ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1967 to May 1969.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran's claims file is now in the jurisdiction of the Newark, New Jersey RO.  In December 2004, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  In August 2006 and in October 2011, the case was remanded for additional development.  In October 2012, the Board sought an advisory medical opinion from the Armed Forces Institute of Pathology (AFIP).  (The Board notes that the AFIP was disestablished and closed in 2011, and the Joint Pathology Center (JPC) now provides pathology consultation to VA.  As a result, the JPC provided the requested opinion in the current case.)  Thereafter, in September 2013, the Veteran submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304 (2013).

As was noted on page 1, because the Veterans Law Judge who conducted a hearing in a matter must participate in the decision on the matter (see 38 C.F.R. § 20.707), the issues of entitlement to a rating in excess of 50 percent for PTSD and entitlement to a TDIU are addressed in a separate decision by the Veterans Law Judge who conducted a hearing in those matters.

The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered.




FINDING OF FACT

Cancer of the head and neck was not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's cancer of the head and neck (with unknown primary site) is related to his service, to include as due to his exposure to herbicide agents therein.


CONCLUSION OF LAW

Service connection for cancer of the head and neck, unknown primary site, to include as secondary to herbicide exposure, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  A January 2003 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  While he was not advised of disability rating and effective date criteria prior to the initial rating decision, a July 2007 letter informed the Veteran of such criteria.  Most recently, a July 2012 supplemental statement of the case (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).  After the issuance of the July 2012 SSOC, in September 2013, the Veteran submitted additional evidence with a waiver of initial RO consideration; thus, the Board will consider such evidence in the first instance, and the Veteran is not prejudiced by such consideration (as he explicitly authorized such).  See 38 C.F.R. § 20.1304.  The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record.  He has not alleged that he has been prejudiced by a notice defect.

The Veteran's service treatment records (STRs) and postservice treatment records have been secured.  Pertinent VA medical opinions were provided in October 2003 and February 2004, and an advisory medical opinion from the JPC was provided in December 2012.  See McLendon v. Nicholson, 20 Vet. App. 27 (2006).  VA attempted to obtain all records pertaining to the Veteran from the Social Security Administration (SSA); however, the SSA responded in November 2011 that they possessed no records pertaining to the Veteran, as all such records had been destroyed.  The Board has determined that VA's development has been exhaustive, and that any further attempts at development for such records would be fruitless.

All of the relevant development requested by the Board's August 2006 and October 2011 remands was fully completed, and therefore the remand orders were fully complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Malignant tumors are a listed chronic disease for purposes of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3).

The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed 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.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence is 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)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

The Veteran contends that his current cancer of the head and neck (with unknown primary site) is secondary to herbicide exposure while serving in Vietnam.

The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of any cancer of the head and neck.  His service personnel records (SPRs) document that he served in the Republic of Vietnam from February 1968 to April 1969.

Postservice private treatment records (outlined below) document the Veteran's diagnosis of and treatment for cancer of the head and neck of unknown primary site.

A March 2002 surgical pathology report (based on a biopsy of a lymph node from his left neck) reflected "moderate to poorly differentiated squamous carcinoma, present in a fragmented lymph node, most consistent with metastatic squamous carcinoma."  A comment on this March 2002 surgical pathology report further noted that the "[m]ost likely sites of origin for this metastatic carcinoma would include head and neck region as well as lung."

In a March 2002 statement, the Veteran's private surgical oncologist (Dr. Ridge) reiterated the Veteran's diagnosis as "[s]quamous cancer unknown primary site left side of the neck (possible tongue base)."  Dr. Ridge stated that it was not uncommon for a small tumor at the base of the tongue to present with metastatic cervical lymphadenopathy and that it was "certainly possible that this is the case now."

A March 2002 surgical consultation report noted that a slide review of the specimen obtained in the aforementioned March 2002 biopsy of a lymph node from the Veteran's left neck showed "metastatic keratinizing squamous cell carcinoma, Grade II to III."

All chest x-rays taken (beginning in March 2002) showed no active disease in the chest or lungs.

A March 2002 surgical pathology report (based on biopsies of the left pharyngeal wall, left medial retromolar gingiva, left tongue base, 38 centimeters down the esophagus, left nasopharynx, and left lateral nasopharynx) reflected "no tumor seen" in the specimens taken from the left pharyngeal wall, left medial retromolar gingiva, left tongue base, left nasopharynx, or left lateral nasopharynx, but reflected "severe dysplasia/squamous cell carcinoma in situ" in the specimen taken 38 centimeters down the esophagus.

An April 2002 surgical pathology report (based on biopsies of various parts of the esophagus) reflected "no tumor seen" in most of the biopsies; the squamous hyperplasia and marked atypia noted at 38 centimeters down the esophagus was noted to be much less severe than in the previous March 2002 biopsy.

From May 2002 to July 2002, the Veteran underwent successful radiation treatment for head and neck squamous carcinoma of unknown primary site.  Subsequent private treatment records have documented his ongoing follow-up appointments.

In a March 2003 statement, the Veteran's private radiation oncologist (Dr. Coia) opined that the Veteran's head and neck cancer "could possibly be associated with having been exposed to Agent Orange or other herbicides."

In a June 2003 statement, Dr. Ridge stated that, "While cancers of unknown primary site are uncommon (and thus not subject to intensive medical scrutiny), their mechanism of development is probably similar to that of other head and neck squamous cancers (such as those of the larynx) which have been related to Agent Orange by the Department of Veterans Affairs.  Hence, I believe that [the Veteran's] current condition should be construed a result of his military service during the Vietnam conflict."

In October 2003, a VA physician provided a medical opinion that, based on the evidence in the claims file, the Veteran did not have cancer of the esophagus.  In February 2004, the same VA physician provided a medical opinion that he could not find any citations in PubMed under the terms "cancer unknown primary Agent Orange dioxin."  He stated that carcinoma of unknown primary was uncommon, and the presentation of squamous cell carcinoma in the neck (cervical) nodes was an even less common subset.  He further noted that, in a medical research study, cervical nodes were the most frequent site of presentation for patients with squamous carcinoma of unknown primary; based upon old references, he stated that only 25 percent of squamous cell carcinomas of unknown primary arose from outside the head and neck region, and that for treatment purposes, these patients were considered to have a locoregional form of head and neck cancer.

At his December 2004 hearing, the Veteran testified that his doctors had told him that his head and neck cancer was "more likely than not" related to his exposure to Agent Orange, because he was not a smoker or a heavy drinker (which he stated were potential causes for head and neck cancer, but not in his case).  He also affirmed that his treatment to remove the cancer had progressed quickly after testing had failed to identify the primary site of the cancer.  He was advised by the undersigned that when (as in the instant case) the cancer is not listed among those enumerated as due to herbicide exposure, nexus between the cancer and service/herbicide exposure may be established by affirmative medical evidence. 

In a December 2004 statement (reiterated verbatim in April 2009), Dr. Ridge noted that "[t]he Department of Veterans Affairs considers exposure to [Agent Orange] to represent a cause of respiratory cancers (such as those of the lung, bronchus, larynx, or trachea).  Cancers of the upper and lower aerodigestive tracts have similar mechanisms of origin and are caused by identical toxins.  If the Department of Veterans Affairs believes that cancers of the lung, bronchus, larynx, or trachea are subject to presumptive service connection, then [the Veteran's] cancer should be thought the same.  Indeed, we cannot be certain that his neck mass was not a result of a microscopic lesion of the larynx itself.  It is my opinion, as an expert in head and neck cancer care, that [the Veteran's] malignancy should be considered a result of his military service during the Vietnam conflict."

In an April 2009 statement, the Veteran's private primary care provider (Dr. Adelizzi) noted the Veteran's diagnosis of and treatment for squamous cell carcinoma of the left neck of unknown primary in 2002, as well as his diagnosis of and treatment for prostate cancer in 2007.  Dr. Adelizzi noted that while serving in the field in Vietnam, the Veteran was exposed to Agent Orange and other herbicides that are known to be carcinogenic.  Dr. Adelizzi opined that since the Veteran was diagnosed with two separate cancers at a relatively young age, "it is reasonable to assume that his exposures in Vietnam were contributory."  [The Board notes that the Veteran is already service-connected for prostate cancer.]

In an October 2009 statement, the Veteran's radiation oncologist (Dr. D'Ambrosio) opined that, given the Veteran's military history and his diagnosis, "it is more likely than not that the site of his cancer, which occurred in his left neck, could be the result of toxic exposure.  Therefore, [the Veteran] should be considered for presumptive eligibility for full benefits under the Agent Orange claim statutes."

Pursuant to the Board's October 2012 request, a medical advisory opinion was provided by the Director of the JPC in conjunction with a physician (pathologist) at the JPC in December 2012.  The Board had asked the JPC to review the claims file, the relevant pathology reports, and the accompanying tissue slide/block, and to offer responses to the following questions:

(1)  Based on your review of the tissue specimens, please indicate what you consider to be the most accurate pathologic diagnosis.

(2)  Is it at least as likely as not (i.e., at least a 50% probability) that the malignant process involving the head and neck could be characterized as a presumptive "respiratory" cancer as defined by regulation; that is, a cancer including involvement of the lung, bronchus, larynx, or trachea?

(3)  If the malignant process involving the neck is not representative of a respiratory cancer, was this process nonetheless caused by military service, including exposure to Agent Orange, or is such an etiology or relationship unlikely (i.e., less than a 50% probability)?

In response to Question (1), the JPC Director and pathologist referred to an accompanying December 2012 JPC Pathology Report which listed the most accurate pathologic diagnosis for the "[l]eft neck, soft tissue, biopsy" (residing in one glass slide and one paraffin block) as "[m]etastatic squamous cell carcinoma, keratinizing," with a comment that "the tumor is keratinizing, but its degree of differentiation is quite variable from one area to another, including areas that are more poorly differentiated.  We cannot determine the primary site of origin."  It was noted that this case was reviewed in collaboration with Oral & Maxillofacial Pathology and Pulmonary & Mediastinal Pathology at the JPC.

In response to Question (2), the JPC Director and pathologist opined that it was not at least as likely as not (i.e., at least a 50% probability) that the malignant process involving the head and neck could be characterized as a presumptive "respiratory" cancer as defined by regulation (that is, a cancer including involvement of the lung, bronchus, larynx, or trachea).  They stated that, "according to published reports [cited herein], it is more likely than not that a squamous cell carcinoma of unknown origin arising in a cervical lymph node arose from a primary site in the head and neck region, and within that region the oropharynx is probably the most common site."  They went on to state that, "[a]lthough somewhat speculative, it may be reasonable to assume that the primary tumor was included in the field of radiation [as the cancer was cured by radiotherapy].  Given that there was no additional evidence of malignant lesions arising in the lungs by radiological studies of the thorax, a lower respiratory tract primary tumor (lungs and bronchi) would appear to be unlikely."  They further stated that they "agree that the primary tumor could have been 'respiratory' in origin (possibly laryngeal), but the evidence for this is far from conclusive, as oropharyngeal sites if anything make up a higher proportion of metastatic squamous cell carcinomas of unknown primary site presenting in cervical lymph nodes."  (Emphasis in original).  They further noted that they were "not aware of a currently available test with sufficient sensitivity and specificity to distinguish with certainty between a laryngeal and an oropharyngeal primary site of origin for this tumor, that can be performed on the available formalin-fixed paraffin embedded tissue."  Therefore, they opined that "[a] respiratory origin (larynx) is possible, but we cannot determine this without resorting to speculation.  The medical literature reviewed would support an oropharyngeal primary site as being the most likely site of origin."

In response to Question (3), the JPC Director and pathologist opined that such question "cannot be answered without resorting to speculation" as "[i]t is difficult to ascribe a probability to a question of etiology when the health outcome in question is unknown or ill-defined."  They explained that they "would have to resort to speculation as to the likely site of origin in order to address possible relationships between metastatic squamous cell carcinoma of the head and neck and exposure to herbicides as there are no epidemiological studies addressing squamous cell carcinoma of unknown origin arising in the head and neck and exposure to herbicides that we are aware of."  (Emphasis in original).  They noted that carcinoma of unknown origin was not indexed in the National Academy of Sciences' Institute of Medicine's (IOM's) "Veterans and Agent Orange: Updates 2000-2008" and was not included in the IOM summary in "Veterans and Agent Orange: Update 2010."  They noted an entry in the summary table listing "Cancers at other and unspecified sites" as having "Inadequate or insufficient evidence to determine an association (between exposure to herbicides and specific health outcomes) in Updates 2006, 2008, and 2010; they stated that "[t]his category may include cancers of unknown primary site of origin, but this is not specifically addressed."  They went on to cite statistics based on pathologic material included in the JPC Agent Orange Registry, and in particular they noted that for patients with metastatic squamous cell carcinomas arising in non-skin sites in the head and neck, the majority had non-"respiratory" sites of origin.  They further stated that "[i]t is not clear what influence the fact that the [Veteran] developed a secondary malignancy (prostate cancer diagnosed at age 59 years), should have on ascribing a probability that the metastatic tumor in the neck was related to the [Veteran's] military service.  We do not believe that the two tumors share a common etiological pathway..."

In September 2013, the Veteran submitted additional evidence with a waiver of initial RO consideration; in light of this waiver, the Board will consider such evidence in the first instance, and the Veteran is not prejudiced by such consideration (as he explicitly authorized such).  This evidence consisted of a May 2013 statement from Dr. Adelizzi, an August 2013 statement from Dr. Ridge, and several Internet articles.

In the May 2013 statement, Dr. Adelizzi noted that the Veteran was treated for head and neck cancer after service and that he was exposed to Agent Orange in service.  Dr. Adelizzi stated that "[t]here is nothing in the [Veteran's] medical history such as alcoholism, or excessive tobacco use, which would indicate another likely causation[;] in my opinion, it is more likely than not that serving in Viet Nam and being exposed to Agent Orange has caused serious medical conditions including both cancers."

In the August 2013 statement, Dr. Ridge noted that he had reviewed the JPC's opinion and pathology report, and reiterated that he had not been able to find a primary tumor in the Veteran despite a "thorough search" (including scanning and biopsies) beginning in March 2002.  Dr. Ridge stated that, "[l]ong before any issues of Agent Orange exposure came to my attention, I found no evidence whatsoever that [the Veteran's] cancer originated in the base of the tongue, left pharyngeal wall, or nasopharynx.  No [tumor] was ever identified in any pharyngeal site, despite examination and biopsies undertaken with particular attention and scrupulous care.  Based upon my evaluation, [the Veteran's] subsequent course, and pathology review, I believe that there is a greater than 50% probability that his tumor did not arise in the nasopharynx or oropharynx.  I consider the larynx to represent a likely primary site - though this cannot be proven because the original source of his metastatic cancer never became clinically evident."  (Emphasis in original).

The Internet articles submitted by the Veteran contain general medical treatise information pertaining to the nasopharynx; head and neck squamous cell carcinoma of unknown primary; laryngeal cancer; cervical lymph node metastases from unknown primary tumors; and cancers of unknown primary origin.



Analysis

The evidence shows that the Veteran has received follow-up treatment for cancer of the head and neck with unknown primary site during the period of the current claims.  His STRs are silent for cancer of the head and neck, and there is no evidence that cancer of the head and neck was manifested to a compensable degree in the first year following his discharge from active duty.  Consequently, service connection for cancer of the head and neck (with unknown primary site) on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112), is not warranted.  Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from cancer of the head and neck continuously since service.  See 38 C.F.R. §  3.303(b).

Instead, the Veteran presents the theory of entitlement that his cancer of the head and neck is causally related to his exposure to Agent Orange in service.  In the case of a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, service connection for respiratory cancers (defined as cancer of the lung, bronchus, larynx, or trachea) will be rebuttably presumed if such disorder manifests to a degree of ten percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

The evidence of record reflects that the Veteran's cancer of the head and neck originated from an unknown primary site.

A March 2002 surgical pathology report (based on a biopsy of a lymph node from his left neck) noted that the "[m]ost likely sites of origin for [the Veteran's] metastatic carcinoma would include head and neck region as well as lung"; however, subsequent chest x-rays (beginning in March 2002) showed no active disease in the chest or lungs.

In a March 2002 statement, Dr. Ridge stated that it was not uncommon for a small tumor at the base of the tongue to present with metastatic cervical lymphadenopathy and that it was "certainly possible that this is the case now"; however, a subsequent March 2002 surgical pathology report (based on biopsies of the left medial retromolar gingival and left tongue base, as well as other locations outside the mouth) reflected "no tumor seen" in the specimens taken from the left medial retromolar gingival or left tongue base.

In February 2004, a VA physician noted that, in a medical research study, cervical nodes were the most frequent site of presentation for patients with squamous carcinoma of unknown primary.

In a December 2004 statement (reiterated verbatim in April 2009), Dr. Ridge stated that "we cannot be certain that [the Veteran's] neck mass was not a result of a microscopic lesion of the larynx itself."  The Board finds that this opinion is entitled to low probative value, because the speculative nature of such is not supported by adequate rationale.

In December 2012, the JPC Director and pathologist provided an extensive rationale for their opinion that it was not at least as likely as not (i.e., at least a 50% probability) that the malignant process involving the head and neck could be characterized as a presumptive "respiratory" cancer as defined by regulation (that is, a cancer including involvement of the lung, bronchus, larynx, or trachea) and that "[a] respiratory origin (larynx) is possible, but we cannot determine this without resorting to speculation.  The medical literature reviewed would support an oropharyngeal primary site as being the most likely site of origin."  They also cited statistics based on pathologic material included in the JPC Agent Orange Registry and noted that for patients with metastatic squamous cell carcinomas arising in non-skin sites in the head and neck, the majority had non-"respiratory" sites of origin.  The Board finds that this opinion is entitled to high probative value, because the rationale for such refers to current medical and scientific research concerning the documented health effects of herbicide exposure.

In an August 2013 statement, Dr. Ridge stated that, "[l]ong before any issues of Agent Orange exposure came to my attention, I found no evidence whatsoever that [the Veteran's] cancer originated in the base of the tongue, left pharyngeal wall, or nasopharynx.  No [tumor] was ever identified in any pharyngeal site, despite examination and biopsies undertaken with particular attention and scrupulous care.  Based upon my evaluation, [the Veteran's] subsequent course, and pathology review, I believe that there is a greater than 50% probability that his tumor did not arise in the nasopharynx or oropharynx.  I consider the larynx to represent a likely primary site - though this cannot be proven because the original source of his metastatic cancer never became clinically evident."  (Emphasis in original).  The Board finds that this opinion is entitled to low probative value, because it is speculative and unaccompanied by adequate rationale.  Dr. Ridge concedes that the primary site of the cancer cannot be proven, yet provides an opinion based on his evaluation, the Veteran's course, and pathology review, without greater explanation.  

None of the Internet articles submitted in September 2013 specifically pertained either to the Veteran's case or to the question of whether the Veteran's cancer of the head and neck could be characterized as a "respiratory" cancer.  Therefore, the Board finds that these articles are entitled to no probative value.

The Veteran is competent to describe any discernible symptoms of his cancer of the head and neck without any specialized knowledge or training.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  However, his statements referring to such cancer as being a respiratory cancer are not competent evidence, as he is a layperson, and lacks the training to render medical diagnoses; the question of the primary site of a cancer determined to be of unknown primary site is on that is eminently medical in nature and is not capable of resolution by lay observation.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court).

Although the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, the most probative evidence of record does not show that it is at least as likely as not that the Veteran has had a respiratory cancer at any time; consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply to his cancer of the head and neck with unknown primary site.

The United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In a March 2003 statement, Dr. Coia opined that the Veteran's head and neck cancer "could possibly be associated with having been exposed to Agent Orange or other herbicides."  The Board finds that this opinion is entitled to low probative value, because the speculative nature of such is not supported by adequate rationale.

In a June 2003 statement, Dr. Ridge stated that, "While cancers of unknown primary site are uncommon (and thus not subject to intensive medical scrutiny), their mechanism of development is probably similar to that of other head and neck squamous cancers (such as those of the larynx) which have been related to Agent Orange by the Department of Veterans Affairs.  Hence, I believe that [the Veteran's] current condition should be construed a result of his military service during the Vietnam conflict."  The Board finds that this opinion is entitled to low probative value, because the rationale is inadequate; it does not refer to any current medical or scientific research concerning the documented health effects of herbicide exposure.

In February 2004, a VA physician provided a medical opinion that he could not find any citations in PubMed under the terms "cancer unknown primary Agent Orange dioxin."

In a December 2004 statement (reiterated verbatim in April 2009), Dr. Ridge noted that "[t]he Department of Veterans Affairs considers exposure to [Agent Orange] to represent a cause of respiratory cancers (such as those of the lung, bronchus, larynx, or trachea).  Cancers of the upper and lower aerodigestive tracts have similar mechanisms of origin and are caused by identical toxins.  If the Department of Veterans Affairs believes that cancers of the lung, bronchus, larynx, or trachea are subject to presumptive service connection, then [the Veteran's] cancer should be thought the same...It is my opinion, as an expert in head and neck cancer care, that [the Veteran's] malignancy should be considered a result of his military service during the Vietnam conflict."  The Board finds that this opinion is entitled to low probative value, because the rationale for such is conclusive in that it does not refer to any current medical or scientific research concerning the documented health effects of herbicide exposure.

In an April 2009 statement, Dr. Adelizzi opined that since the Veteran was diagnosed with two separate cancers (squamous cell carcinoma of the left neck of unknown primary, and prostate cancer) at a relatively young age, "it is reasonable to assume that his exposures in Vietnam were contributory."  The Board finds that this opinion is entitled to low probative value, because it is conclusive and does not refer to any current medical or scientific research concerning the documented health effects of herbicide exposure.  Notably, there is no evidence that the "two separate cancers" might share a common etiology.

In an October 2009 statement, Dr. D'Ambrosio opined that, given the Veteran's military history and his diagnosis, "it is more likely than not that the site of his cancer, which occurred in his left neck, could be the result of toxic exposure.  Therefore, [the Veteran] should be considered for presumptive eligibility for full benefits under the Agent Orange claim statutes."  The Board finds that this opinion is entitled to low probative value, because it is both speculative, and conclusive, unsupported by adequate rationale.

In December 2012, the JPC Director and pathologist opined that the question of whether the Veteran's malignant process involving the neck was caused by military service (including exposure to Agent Orange) could not be answered "without resorting to speculation" as "[i]t is difficult to ascribe a probability to a question of etiology when the health outcome in question is unknown or ill-defined."  They explained that they "would have to resort to speculation as to the likely site of origin in order to address possible relationships between metastatic squamous cell carcinoma of the head and neck and exposure to herbicides as there are no epidemiological studies addressing squamous cell carcinoma of unknown origin arising in the head and neck and exposure to herbicides that we are aware of."  (Emphasis in original).  They went on to cite evidence from the IOM's "Veterans and Agent Orange: Updates 2000-2008"and "Veterans and Agent Orange: Update 2010" to further explain why an opinion could not be rendered without speculation.  The Board finds that this opinion is entitled to high probative value, despite its lack of certainty, because the rationale for such makes it clear that the JPC Director and pathologist considered all procurable and assembled data (including current medical and scientific research concerning the documented health effects of herbicide exposure), and their opinion expressed the limitations of knowledge in the medical community at large (by noting that there was no knowledge in the medical literature that would support this causality).  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (a speculative opinion is not inadequate when the examiner provides a reasoned explanation as to why an opinion could not be rendered).

In a May 2013 statement, Dr. Adelizzi stated that "[t]here is nothing in the [Veteran's] medical history such as alcoholism, or excessive tobacco use, which would indicate another likely causation[;] in my opinion, it is more likely than not that serving in Viet Nam and being exposed to Agent Orange has caused serious medical conditions including both cancers."  The Board finds that this opinion is entitled to low probative value, because the rationale for such does not refer to medical or scientific research concerning the documented health effects of herbicide exposure.

None of the Internet articles submitted in September 2013 specifically pertained either to the Veteran's case or to the question of whether the Veteran's cancer of the head and neck was caused by military service (including exposure to Agent Orange therein).  Therefore, the Board finds that these articles are entitled to no probative value.

The Veteran is competent to describe any discernible symptoms of his cancer of the head and neck without any specialized knowledge or training.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  However, his statements relating such cancer to herbicide exposure in service is not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation; whether a disease/condition is related to Agent Orange exposure is a medical question, and is not capable of resolution by lay observation.  See Jandreau, supra.

The most probative evidence of record does not show that it is at least as likely as not that there is a nexus between the Veteran's cancer of the head and neck with unknown primary site and Agent Orange exposure during his military service.  See Combee, supra.

In light of the foregoing, the Board concludes that the preponderance of the evidence is against this claim.  Accordingly, the appeal in this matter must be denied.


ORDER

The appeal seeking service connection for cancer of the head and neck, unknown primary site, to include as due to herbicide exposure, is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs