Citation Nr: 1334406 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-35 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for squamous cell carcinoma of the right tonsil. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1967 to March 1974. The issue or claim is before the Board on appeal of a rating decision in May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the record. In October 2011 and February 2013, the Board remanded the claim for additional development. As there has been substantial compliance with the Board's remand directives, no further action to ensure compliance is necessary. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In June and July 2013, the Veteran submitted additional argument. The claim is now ready for appellate review. FINDING OF FACT Squamous cell carcinoma of the right tonsil was not affirmatively shown to have been present during service; squamous cell carcinoma of the right tonsil was not manifested to a compensable degree within one year from the date of separation from service in March 1974; squamous cell carcinoma of the right tonsil, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service; squamous cell carcinoma of the right tonsil is not a disease presumed to be due to exposure to Agent Orange; and squamous cell carcinoma of the right tonsil is not actually caused by exposure to Agent Orange. CONCLUSION OF LAW Squamous cell carcinoma of the right tonsil to include was not incurred in or aggravated by service and service connection for squamous cell carcinoma of the right tonsil may not be presumed based on either the one-year presumption for a chronic disease, following service, or exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 303, 3 .307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in March 2009 and in March 2013. The notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim, except service connection by actual causation due to exposure to Agent Orange, and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (to the extent of pre-adjudication VCAA notice). To the extent the VCAA notice omitted the type of evidence needed to establish service connection for a disability not subject to presumptive service connection due to exposure to Agent Orange, namely, evidence of actual causation due to exposure to Agent Orange, the VCAA notice was deficient, but actual causation was argued by the Veteran's representative in an informal hearing presentation in August 2013. As the Veteran has not alleged prejudicial error, the Board finds that any defect in the content of the VCAA notice has not affected the essential fairness of the adjudication, that is, the opportunity for the Veteran to submit evidence and to be heard on the claim. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (if VA does not provide adequate notice of any of element necessary to substantiate a claim, the burden is on the claimant to show that the notice error was prejudicial). To the extent the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. Pelegrini, at 119-120. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in June 2013. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained the service records, VA records, and private medical records. The Veteran was afforded a VA examination in April 2013. The RO determined that the VA examination was inadequate to decide the claim and asked the VA examiner to clarify the opinion expressed in the examination. The VA examiner provided an addendum to the opinion in May 2013. As addendum opinion was based on a review of the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion, the opinion is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection A Veteran is entitled to VA disability compensation, that is, service connection, for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including malignant tumors [cancer], if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. If a Veteran is presumably exposed to Agent Orange, there is a presumption of service connection for respiratory cancers (cancer of the lung, bronchus, larynx, or trachea. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). VA's Secretary has determined 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 any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. 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 (June 12, 2007); 75 Fed. Reg. 32540 (June 8, 2010); 75 Fed. Reg. 81332 (Dec. 27, 2010); and 77 Fed. Reg. 47924 (August 10, 2012). Notwithstanding the aforementioned provisions relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. If the evidence is not credible, the evidence has no probative value. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The service personnel records show that the Veteran left Vietnam in May 1972. The service treatment records show that the Veteran was treated for pharyngitis by throat culture, that is, a bacteria infection due to streptococcus, in January 1970 and in January 1973. [Pharyngitis is caused by swelling (inflammation) of the pharynx, which is in the back of the throat, between the tonsils and the voicebox (larynx)]. In June 1972, he was treated for symptoms, including a sore throat, associated with a viral infection [flu]. The remainder of the service treatment records contains no complaint, finding, history, treatment, or diagnosis of a tonsillar abnormality or of cancer. After service, a private surgical report in October 2008 showed that on a direct laryngoscopy a right tonsillar mass was appreciated. There was no evidence of other malignancy, including of the endolaryngeal structures. In November 2008, the Veteran's file his current claim for VA disability compensation for throat cancer diagnosed in October 2008. VA records show that in November 2008 the Veteran started radiation therapy for squamous cell carcinoma of the right tonsil. After a CT scan the impression was right oropharyngeal neoplasm and possible right recurrent laryngeal nerve involvement. And in December 2008, history included the following: In August 2008 the Veteran had developed dysphagia, nasal airway obstruction, rhinorrhea, problems breathing, and a sore throat in August 2008. As the symptoms did not resolve a CT scan in October 2008 showed an enlarged right tonsil suspicious for malignancy. After a tonsillectomy and uvulectomy, a surgical pathology report showed an invasive squamous cell carcinoma of the right tonsil. In January 2009, a private physician reported a diagnosis of squamous cell carcinoma of the right tonsil with local excision and current radiation and chemotherapy. In March 2009, a CT scan by VA showed no intrinsic abnormality of the larynx or trachea. In a statement in September 2009 the Veteran stated he was exposed to Agent Orange in Vietnam in 1967 and 1968 and in 1971 and 1972. In July 2011, the Veteran testified that a VA physician had stated that the cancer spread from the throat to the tonsils. In statements in August 2011, a witness, D.B., and the Veteran's daughter stated that they heard the VA physician stated that the Veteran's cancer spread from the throat to the tonsils. In a statement in August 2011, the Veteran's son stated that after his father's surgery a physician stated that the cancer had spread to the tonsils. In August 2012 and in June 2013, the Veteran submitted extracts from several internet articles to the effect that the tonsils are located in the back of the throat and near the oropharynx and nasopharynx and that tonsil cancer is also known as pharyngeal cancer. In October 2012, the Veteran, through his representative, argued that his cancer should be considered a respiratory cancer under 38 C.F.R. § 3.309(e) due to the anatomical proximity of the pharyngeal cancer to the larynx. In April 2013, on VA examination in April 2013, the VA examiner concluded that: a) the primary site of the squamous cell carcinoma "could be" the margins of the larynx instead of the right tonsil, b) if the primary site of the squamous cell carcinoma was on the right tonsil, then the cancer was a type of pharyngeal cancer, and c) pharyngeal cancer should be considered a respiratory cancer of the larynx if the tumor spread all over the right tonsil and surrounding deep soft tissue that involve the larynx. As the VA examiner's opinion was expressed in terms of "could be," the RO determined that the opinion was too speculative to establish a medical nexus. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the use of the term "could" without supporting clinical data or other rationale is too speculative to provide the degree of certainty required for medical nexus evidence). In addendum to the opinion in April 2013, after a review of the Veteran's history and file, the VA examiner, in May 2013, clarified the earlier opinion by explaining that the Veteran had squamous cell carcinoma that involved the nasopharynx, the right epiglottic fold, the right tonsillar fossa with tethering to the uvula, the right recurrent laryngeal nerve, and the Rosenmueller fossa, surrounding the soft tissue of the larynx. The VA examiner stated that the squamous cell carcinoma originated from the tonsil, which was the primary site of the tumor, and that the carcinoma was an oropharyngeal cancer, which extended to the surrounding soft tissue of the larynx. In August 2013, the Veteran, through his representative, argued that the opinion of the VA examiner was evidence of a direct nexus between cancer of the right tonsil and exposure to Agent Orange. Analysis Service Connection on the Basis other than Exposure to Agent Orange The service treatment records show that the Veteran was treated for symptoms of a sore throat on several occasions, which were associated with pharyngitis due to a bacteria infection or to the flu. The remainder of the service treatment records contain no complaint, finding, history, treatment, or diagnosis of a tonsillar abnormality or of cancer. On the basis of the service treatment records alone, cancer of the right tonsil was not affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. Although cancer is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (chronicity and continuity of symptomatology under the regulation creating presumption of service connection for chronic diseases manifested during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases and is triggered by symptoms noted in service, which are indicative of but not dispositive of a chronic disease, such as cancer. 38 C.F.R. § 3.303(b)). As there is no competent evidence either contemporaneous with or after service that symptoms indicative of cancer of the right tonsil were noted during service, service connection by chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) is not established. The earliest evidence of cancer of the right tonsil was in October 2008, 34 years after the Veteran's discharge from service in 1974, well beyond the one-year presumptive period after service for manifestation of a cancer as a chronic disease and presumptive service connection as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307, 3.309 is not established. And there is no competent evidence that cancer of the right tonsil first documented after service beyond the one-year presumptive period pertaining to a chronic disease, is otherwise related to an injury, disease, or event other than exposure to Agent Orange in service and service connection under 38 C.F.R. § 3.303(d) is not established. Service Connection due to Exposure to Agent Orange The Veteran asserts that squamous cell carcinoma of the right tonsil is due to exposure to Agent Orange. While the Veteran served in Vietnam and his exposure to Agent Orange is presumed, cancer of the right tonsil is not on the list of presumptive diseases associated with exposure to Agent Orange and service connection on a presumptive basis due to exposure to Agent Orange in Vietnam is not established under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, the Veteran is not precluded from establishing service connection with proof of actual causation, that is, proof that exposure to Agent Orange actually caused tonsillar cancer. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The remaining question is whether there is competent and credible evidence that tonsillar cancer is either actually caused by exposure to Agent Orange or is a type of respiratory cancer, which is associated with Agent Orange exposure. The Veteran has not submitted any medical or scientific evidence that shows a positive association between tonsillar cancer and exposure to Agent Orange or that cancer of the tonsil is a respiratory cancer. To the extent the Veteran has expressed the opinion that cancer of the tonsil is caused by exposure to Agent Orange or cancer of the tonsil is a respiratory cancer, the Veteran as a lay person is competent to identify a simple medication condition and to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means 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); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The presence of cancer is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.159; see Jandreau, at 1377, n. 4 (a lay witness is not capable of diagnosing a form of cancer). And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify cancer of the tonsil or to offer an opinion on the causal relationship between exposure to Agent Orange and cancer of the tonsil and whether cancer of the tonsil is also a respiratory cancer. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As for the Veteran's testimony and the statements of, D.B., and the Veteran's daughter that a VA physician had stated that the cancer spread from the throat to the tonsils, and the statement of the Veteran's son that according to a physician the cancer had spread to the tonsils, the Board finds that the evidence is too attenuated and inherently unreliable to constitute competent medical evidence. Robinette v. Brown, 8 Vet, App, 69, 77 (1995). Consequently, the lay testimony and statements are not competent evidence, and the lay testimony are excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As for the extracts of internet articles to the effect that the tonsils are located in the back of the throat and near the oropharynx and nasopharynx and that tonsil cancer is also known as pharyngeal cancer, the evidence has no probative value, that is, the evidence does not tend to prove a material issue of fact, either that cancer of the tonsil is actually caused by exposure to Agent Orange or cancer of the tonsil is a respiratory cancer. Therefore, the evidence is not persuasive evidence favorable to the claim. As for cancer of the tonsil as due to Agent Orange exposure, according to National Academy of Sciences (NAS) report: Veterans and Agent Orange: Update 2010 (hereinafter, Update 2010), the available epidemiologic studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association between herbicide exposure [Agent Orange] and cancers of the oral cavity, including lips and tongue, and of the pharynx, including the tonsils, and of the nasal cavity, including the ears and sinuses. 77 Fed. Reg. 47924 (August 10, 2012). As for cancer of the tonsil as a respiratory cancer, in October 2008 on a direct laryngoscopy a right tonsillar mass was appreciated. A surgical pathology report showed an invasive squamous cell carcinoma of the right tonsil. There was no evidence of other malignancy, including of the endolaryngeal structures. In November 2008, the impression was a right oropharyngeal neoplasm and possible right recurrent laryngeal nerve involvement. In January 2009, the diagnosis was squamous cell carcinoma of the right tonsil. In March 2009, a CT scan showed no intrinsic abnormality of the larynx or trachea. In May 2013, a VA examiner clarified an earlier opinion by explaining that the Veteran had squamous cell carcinoma that involved the nasopharynx, the right epiglottic fold, the right tonsillar fossa with tethering to the uvula, the right recurrent laryngeal nerve, and the Rosenmueller fossa, surrounding the soft tissue of the larynx. The VA examiner stated that the squamous cell carcinoma originated from the tonsil, which was the primary site of the tumor, and that the carcinoma was an oropharyngeal cancer, which extended to the surrounding soft tissue of the larynx. The Board finds that this evidence is persuasive evidence against the claim that cancer of the tonsil is a respiratory cancer and while the cancer involved the right laryngeal nerve and the tissue around the larynx, the primary site of the cancer was the right tonsil, not the larynx. For these reasons, the preponderance of the evidence is against the claim of service connection for squamous cell carcinoma of the right tonsil and the benefit-of-the-doubt standard of proof does not apply. ORDER Service connection for squamous cell carcinoma of the right tonsil is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs