Citation Nr: 1331865 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-45 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of throat cancer as due to exposure to Agent Orange or other herbicide agents. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2011, the Veteran testified before the undersigned at a video conference hearing from the RO. At the August 2011 Board hearing, the Veteran indicated that he would be submitting additional evidence in support of his claim and that he waived RO jurisdiction over such evidence. Indeed, in October 2011, the Board received additional evidence, which is discussed in the following decision. FINDING OF FACT The Veteran's throat cancer is attributable to his service in Vietnam. CONCLUSION OF LAW Throat cancer, variously characterized as tonsillar, laryngeal, and pharyngeal cancer, is the the result of herbicide exposure during active military service in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 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. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for throat cancer, the Veteran's claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, a malignant tumor will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes malignant tumors. See 38 C.F.R. § 3.309(a). Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. VA law and regulations further provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran, who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 U.S.C.A. § 1116, 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; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). Additionally, several new conditions were added to the presumptive list: ischemic heart disease, Parkinson's disease, and B cell leukemias, and hairy cell leukemia. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 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, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4 (Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b) and (c), provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he is to publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. Although 38 U.S.C. § 1116 does not define "credible," it does instruct the Secretary to "take into consideration whether the results [of any study] are statistically significant, are capable of replication, and withstand peer review." Simply comparing the number of studies which report a positive relative risk to the number of studies which report a negative relative risk for a particular condition is not a valid method for determining whether the weight of evidence overall supports a finding that there is or is not a positive association between herbicide exposure and the subsequent development of the particular condition. Because of differences in statistical significance, confidence levels, control for confounding factors, bias, and other pertinent characteristics, some studies are clearly more credible than others, and the Secretary has given the more credible studies more weight in evaluating the overall weight of the evidence concerning specific diseases. Section 3 of the Act directs the Secretary of VA to seek to enter into an agreement with the NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. Claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an analysis of scientific evidence. Section 3 of the Agent Orange Act of 1991 directed the Secretary of VA to seek to enter into an agreement with NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). In addition, the Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, female reproductive cancers, breast cancer, renal cancer, testicular cancer, leukemia, abnormal sperm parameters and infertility, cognitive and neuropsychiatric disorders, motor/coordination dysfunction, chronic peripheral nervous system disorders, metabolic and digestive disorders, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, gastrointestinal tumors, bladder cancer, brain tumors, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). Similarly, NAS has specifically found that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for cancers of the pharynx. Cancers of the pharynx are characterized as cancers of the oral cavity, as opposed to cancers of the respiratory system The Secretary, based on findings by the NAS recently determined that there remains no positive association between herbicide exposure and tonsil cancer. In a Notice published in the Federal Register in June 2010, the Secretary stated in pertinent part that: "...there is a paucity of findings specifically related to tonsil cancer, because of the extreme rarity of this type of cancer and its occurrence in an anatomic region whose cancers are grouped idiosyncratically..." On the basis of its evaluation of the evidence reviewed in Update 2006 and previous reports, NAS concluded that there was inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and tonsil cancer." See 75 Fed. Reg. 32,540, 32,543 (June 8, 2010). A presumptive cancer, such as lung cancer, which develops as a result of a metastasizing non-presumptive cancer may not be service-connected under 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.307(a). See VAOPGCPREC 18-97 (presumptive service connection may not be established under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure if the cancer developed as the result of metastasis of a cancer that is not associated with herbicide exposure); see also Darby v. Brown, 10 Vet. App. 243 (1997) (the presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site); see also Ramey v. Brown, 9 Vet. App. 40, 44 (1996) (the presumption of service connection for liver cancer did not apply because the medical evidence revealed that carcinoma of the liver was a result of metastasis from colon cancer, rather than from primary liver cancer). In this case, the Veteran has been treated by Dr, T. and the Cleveland Clinic for cancer. In May 2003, he was diagnosed as having squamous cell carcinoma of the left oropharynx and was treated with chemotherapy and radiation. In March 2010, Dr. T. submitted a letter in which he indicated that the tonsils were part of the pharynx, and that the Veteran's malignancy was located in the pharynx. VA records have made reference to laryngeal cancer. In addition, at the time of his hearing, the Veteran submitted another medical opinion letter from Dr. M. dated in July 2011 which stated that the Veteran's laryngeal cancer and his tonsillar squamous cell carcinoma were essentially the same, and related to his inservice Agent Orange exposure. Combee v. Brown,34 F.3d. 1039 (Fed. Cir. 1994). The Veteran also submitted a copy of a Board decision, unrelated to the one on appeal, which cited to medical information that cancer of the tonsil and base of the tongue were part of the respiratory system and therefore, "respiratory cancers." The Board is cognizant of the findings of the NAS that there was inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and tonsil and pharynx cancer; however, two of the Veteran's treating physicians essentially indicated that the Veteran had laryngeal cancer (cancer of the larynx) or throat cancer. Cancer of the larynx is considered a respiratory cancer and listed among the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). These physicians apparently did not find that the clinical findings are inadequate or insufficient in that regard. Also, and significantly, both of these physicians are familiar with the Veteran and his medical status. Further, to the extent that the Veteran has been diagnosed as having tonsillar squamous cell cancer, such has been directly attributed to the Veteran's herbicide exposure. See Combee, supra; See July 2011 opinion of Dr.T. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the private physicians were aware of the Veteran's medical history, treated the Veteran, and provided opinions The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Cohen v. Brown, 10 Vet. App. 128, 137 (1997). In light of the foregoing and in affording all reasonable doubt to the Veteran, service connection for residuals of throat cancer is warranted. ORDER Service connection for residuals of throat cancer is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs