Citation Nr: 1333792	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  07-34 710A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for squamous cell carcinoma of the tonsils (tonsil cancer).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel






INTRODUCTION

The Veteran served on active duty from August 1968 to July 1972, including service in the Republic of Vietnam from June 1970 to June 1971. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

In March 2010, the Veteran withdrew his personal hearing request.  In May 2010, the Board remanded the claim for additional development.


FINDING OF FACT

The preponderance of the evidence shows that the Veteran's tonsil cancer was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his presumed Agent Orange exposure.


CONCLUSION OF LAW

Tonsil cancer was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1112, 1116, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

In this regard, the Board finds that letters dated in July 2005 and March 2006, prior to the May 2006 rating decision, and a letter dated in June 2010 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess as well as in substantial compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998).  While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the June 2011 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statement of the case, and the Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records from the Hines VA Medical Center in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 12 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).  

The record also shows that the VA obtained a medical opinion in June 2010 as well as an addendum to that opinion in August 2010.  Moreover, the Board finds that the VA examination and addendum are adequate to adjudicate the claim and substantially complies with the Board's remand instructions because after a review of the record on appeal, the examiner provided an opinion as to the origins of the tonsil cancer which opinion was based on citation to relevant evidence found in the claims file.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claim's folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

In writings to VA, the Veteran and his representative contend that the claimant's tonsil cancer was caused by his military service including his exposure to Agent Orange while serving in the Republic of Vietnam.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) such as a malignant tumor.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including a malignant tumor, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In this regard, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  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 served in the Republic of Vietnam during the Vietnam war period.  38 C.F.R. § 3.307.  For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  

The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (but including adult fibrosarcoma, dermato fibrosarcoma protuberans, malignant fibrous histiocytoma, Liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), Rhabdomyosarcoma, Ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma).  38 C.F.R. § 3.309(e).  

In this regard, note 3 provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  Id.

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  




a.  The 38 C.F.R. § 3.309(e) Presumption

As to service connection for tonsil cancer under the presumptions found at 38 C.F.R. § 3.309(e), the Board notes that the Veteran's DD 214's show that he served in the Republic of Vietnam from June 1970 to June 1971.  Accordingly, the Board finds that this presumption applies to the current appeal.  See 38 C.F.R. § 3.307.  However, tonsil cancer is not one of the specifically enumerated disease process found at 38 C.F.R. § 3.309(e).  Therefore, the Board finds that service connection for tonsil cancer is not warranted under this presumption.  See 38 U.S.C.A. § 1110, 1116; 38 C.F.R. §§ 3.307, 3.309(e). 

b.  The 38 C.F.R. § 3.309(a) Presumption

As to service connection for tonsil cancer under the presumptions found at 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with a malignant tumor of the tonsil in the first post-service year.  Therefore, the Board finds that service connection for tonsil cancer is not warranted under this presumption.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

c.  Direct Causation

Given the above, the Board will next see if service connection is warranted for tonsil cancer based on proof of direct causation.  See Combee.

As to a current disability, the record documents the Veteran's post-service complaints and treatment for tonsil cancer.  See VA treatment records dated from 2005 to the present. 

As to service incurrence under 38 C.F.R. § 3.303(a), as noted above, given the Veteran's service in the Republic of Vietnam during the Vietnam era, he is presumed to have had herbicide exposure during this time.  See 38 C.F.R. § 3.307.  Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of tonsil cancer (i.e., a sore throat, horsiness, etc. . .) while on active duty even when not documented in his medical records, because these symptoms come to him through his own senses.  See Davidson.  

However, the Veteran's service treatment records, including the May 1972 examination, are negative for complaints, diagnoses, or treatment for tonsil cancer.  Moreover, while the Veteran as a lay person is competent to report on his symptoms of tonsil cancer because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of this disease because such an opinion requires medical expertise which he does not have.  See Davidson.  Therefore, the Board finds more compelling the service treatment records, including the May 1972 examination, which are negative for a history of or a diagnosis of tonsil cancer than the lay claims. 

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have tonsil cancer while on active duty.  Therefore, the Board finds that entitlement to service connection for tonsil cancer must be denied based on in-service incurrence despite the Veteran's presumptive exposure to herbicides while serving in the Republic of Vietnam and despite his claims regarding having problems with observable symptoms of this disease while on active duty.   38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1971 and the first complaints and/or treatment for tonsil cancer in 2005 to be compelling evidence against finding continuity.  Put another way, the over three decade gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs against his claim.  

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of tonsil cancer since service even if not documented in his medical records.  See Davidson.  The Board also acknowledges that the Veteran's representative is competent to give evidence about what he can see.  Id.  However, his account is not competent as a diagnosis of cancer must be based on the results of diagnostic testing and thus are not capable of lay observation.  Further, his lay report is contrary to what is found in the service and post-service medical records including the May 1972 examination and the negative post-service record until 2005.

In these circumstances, the Board gives more credence and weight to the medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disorder for over three decades following his separation from active duty, than the Veteran's and his representative's claims which are incredible.  Therefore, entitlement to service connection for tonsil cancer based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(b), 3.309.

As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for any competent and credible opinion finding a relationship between the Veteran's current tonsil cancer and a disease or injury of service origin.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

In this regard, the VA examiner in June 2010 opined, after a review of the record on appeal, that his tonsil cancer was less likely as not related to his military service including his presumptive herbicide exposure.  Specifically, the examiner noted that the Veteran's history including drinking bourbon every Friday (5 to 6 shots) since military service and, while he denied a history of smoking, both his mother and brother are smokers with lung cancer and "[g]iven his drinking history which is a risk factor for tonsilar cancer and no strong evidence linking tonsilar cancer to agent orange, it is less likely that his tonsilar cancer is related to service." 

The June 2010 opinion is not contradicted by any other medical opinion of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  In fact, the National Academy of Sciences (NAS) opined that there was no connection between exposure to herbicides in the Republic of Vietnam for all disease not listed at 38 C.F.R. § 3.309(e) including cancers of the pharynx (including tonsils).  See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996); 64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 30, 2003); 72 Fed. Reg. 32395 (May 20, 2007). 

As to the Veteran's and his representative's assertions that the claimant's tonsil cancer was caused by his military service, the Board finds the VA and NAS medical opinions more credible than these lay claims because physicians have more expertise.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  Moreover, the Board finds that diagnosing tonsil cancer requires special medical training that these lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  See Davidson.  Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence.  Jandreau. 

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's current tonsil cancer was not caused by his military service.  Accordingly, the Board finds that entitlement to service connection for tonsil cancer is not warranted based on the initial documentation of the disease after service because the weight of the probative evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin including the Veteran's presumptive exposure to herbicides while serving in the Republic of Vietnam.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(d), 3.307.

Accordingly, the Board must conclude that entitlement to service connection for tonsil cancer must be denied because the weight of the evidence is against the claim.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309.  

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the most probative evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for tonsil cancer is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs