Citation Nr: 1334395 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-07 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for metastatic squamous cell carcinoma of the lymph nodes for substitution purposes. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to September 1969, to include combat service in Vietnam. The Veteran died in May 2011. The appellant is the Veteran's widow. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision. The case was certified to the Board before the Veteran's death. The appellant has filed a claim seeking to be substituted for her husband for the purpose of processing his claim to completion. In so doing, she appointed the representative in June 2011. In October 2012, the RO issued a letter indicating that the appellant was eligible for substitution, and granted her motion. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and he is presumed to have been exposed to Agent Orange. 2. The Secretary of VA has specifically determined there is a positive association between herbicide exposure and cancer of the larynx. 3. The medical evidence regarding whether the Veteran's primary cancer site was his larynx is in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor carcinoma of the supraglottic larynx region is presumed to have been incurred during his military service, and that cancer metastasized to the lymph nodes. 38 U.S.C.A. §§ 1110, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. The appellant contends that the squamous cell carcinoma of the lymph nodes was due to the Veteran's exposure to herbicides while stationed in Vietnam. 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. Service records show that the Veteran served in the Republic of Vietnam. Accordingly, he had the requisite service as defined by 38 C.F.R. § 3.307(a)(6)(iii) to be presumed to have been exposed to an herbicide agent during such service in the absence of affirmative evidence to the contrary. Cancer of the larynx is a disease subject to presumptive service connection for herbicide exposed veterans. 38 C.F.R. §§ 3.307, 3.309. An April 2009 biopsy of the Veteran's left jugular node showed a fragment of fibroadipose and lymphoid tissue with metastatic moderately differentiated squamous cell carcinoma. Thus, the question is whether cancer of the lymph nodes metastasized from the larynx. A September 2009 letter from a treating physician noted that the Veteran was diagnosed with squamous cell carcinoma of the cervical lymph node of unknown primary in April 2009, and that he underwent a radical neck dissection and multiple random biopsies at which time no primary site was identified. A May 2009 outpatient consultation record indicated that the Veteran had been diagnosed with squamous cell carcinoma of the supraglottic larynx region with metastasis to the left cervical nodal chain. A December 2010 cytopathology report noted history of poorly differentiated squamous cell carcinoma of the larynx metastatic to left cervical lymph node status post radical left neck dissection in 2009 as well as chemotherapy and radiation therapy. In March 2012, a VA medical opinion was obtained which noted that a primary source was not found as evidenced by no tumor being found in the tissues recovered during the radical neck dissection and that the primary site was not identified. The evidence shows a difference of opinion among the medical professionals. In deciding whether the Veteran's metastatic squamous cell carcinoma originated in the larynx, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. A detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter. It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another. Accordingly, the Board finds that the competent medical evidence of record, both for and against a finding that the Veteran's metastasis squamous cell carcinoma originated in the larynx is in equipoise. In making this decision the Board observed that in an April 2013 rating decision service connection for the cause of the Veteran's death was granted. VA based the grant on the March 2012 VA examiner's opinion that although a primary source was not found as evidenced by no tumor being found in the tissues recovered during the radical neck dissection, and while smoking and drinking alcohol are risk factors for squamous cell carcinoma of the head and neck, cancers of the respiratory tract are presumably related to herbicide exposure. As such, VA has held that it was at least as likely as not that metastatic head and neck cancer was related to the Veteran's service in Vietnam. ORDER Entitlement to service connection for metastatic squamous cell carcinoma of the lymph nodes due to primary squamous cell carcinoma of the larynx, resulting from herbicide exposure in service, is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs