Citation Nr: 1336298	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  12-34 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for squamous cell carcinoma of the head, neck, and tonsils, claimed as due to herbicide exposure.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

C.E. de Jong, Associate Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from April 1967 to July 1972. His service included a one-year tour in the Republic of Vietnam.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claim.

The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.


FINDINGS OF FACT

1. The Veteran is presumed to have had herbicide exposure while serving in the Republic of Vietnam.

2. The Veteran's squamous cell carcinoma of the head, neck, and tonsils has not been shown to be of the type or in a location that would dictate that it be presumptively linked to his presumed herbicide exposure.

3. The Veteran's squamous cell carcinoma of the head, neck, and tonsils has not been shown to have either begun during or have otherwise been caused by his military service, to include any exposures therein.


CONCLUSION OF LAW

The criteria for service connection for squamous cell carcinoma of the head, neck, and tonsils have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Service Connection

In August 2010, the Veteran filed a claim seeking service connection for squamous cell carcinoma of the head, neck, and tonsils. The Veteran maintains that his cancer is due to his exposure to herbicide agents in Vietnam.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In May 2010, the Veteran was diagnosed with squamous cell carcinoma of the tonsil, which initially manifested in a mass in the left posterior oropharynx at the level of the palatine tonsils. The Veteran asserts that given the close proximity of this cancer to his respiratory system, the presumption of service connection based on a disease linked to herbicide exposure should be extended to cover his cancer.

Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. 


The Veteran served on active duty as an Aircraft Mechanic from April 1967 to July 1972, including a year in Vietnam from August 1970 to August 1971. Based on his service in Vietnam, he is presumed to have been exposed to herbicides such as Agent Orange. However, the Board notes that mere exposure to Agent Orange alone does not create a permanent disability for which compensation may be granted. Instead, one of the listed diseases must be manifested to merit the presumption.

There is no dispute as to the primary site of the Veteran's cancer. The only diagnosis the Veteran received for this cancer was the initial diagnosis in May 2010, stating that the left tonsil was the primary site of the Veteran's cancer. 

Cancer of the tonsils is not included on the exclusive list of diseases presumed to be related to herbicide exposure in 3.309(e). Tonsillar cancer has been specifically addressed in a prior National Academy of Science report finding that presumptive service connection based on herbicide exposure is not warranted for this type of cancer. The Agent Orange Act of 1991 requires that when the Secretary of VA determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. 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. 38 U.S.C.A. § 1116 (b), (c). The 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, defined to include the tonsils. See "Veterans and Agent Orange: Update 2010"; 77 Fed. Reg. 47927 (Aug. 10, 2012). In that Update, the NAS found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and cancers of the pharynx (which includes the tonsils), and as the Veteran's cancer was diagnosed as squamous cell carcinoma of the left tonsil, his cancer is one of the pharynx and not included on the list of diseases presumed related to herbicide exposure.

The Veteran first presented to the Southern Arizona VA Medical Center (VAMC) with complaints of a tender mass on the left side of his neck in March 2010. The Veteran subsequently received a CT scan at the Iron Mountain VAMC in Michigan, which resulted in a determination that the mass was a tumor. The Veteran was then sent for a biopsy at the Milwaukee VAMC, as well as a PET scan at the Minneapolis VAMC. These tests resulted in the diagnosis of squamous cell carcinoma of the left tonsil in May 2010. At that time, nodal metastases were noted in the left-side cervical chain lymph nodes. The Veteran subsequently underwent a tonsillectomy and received chemotherapy and radiation treatments for his cancer through September 2010.

 The Veteran argues that due to the proximity of the tonsils to the respiratory system, the presumption of service connection that is afforded to respiratory cancers should be expanded to include his tonsillar cancer. As noted above, respiratory cancers are defined to include only cancers of the lung, bronchus, larynx, or trachea. See 38 C.F.R. § 3.309(e). The Board cannot add conditions to or expand the definitions of conditions included in the regulatory list. Furthermore, presumptive service connection refers to the primary cancer so that if the Veteran's squamous cell carcinoma metastasized into his lung, bronchus, larynx, or trachea it would not be subject to presumptive service connection under 38 U.S.C.A. § 1116(a)  and 38 C.F.R. § 3.309(e). VAOPGCPREC 18-97; Darby v. Brown, 10 Vet. App. 243 (1997). In this case, there is no evidence to indicate that the Veteran's cancer originated in his lung, bronchus, larynx, or trachea, and therefore his cancer is not considered a respiratory cancer for purposes of presumptive service connection. Furthermore, there is no evidence to indicate that the Veteran's cancer originated anywhere other than the tonsils or that the Veteran's cancer was identified as any type of cancer enumerated in 3.309(e). 

In this case, the Veteran's squamous cell carcinoma of the head, neck, and tonsils is not included on the list of diseases presumed related to herbicide exposure, and does not qualify as a respiratory cancer originating in the lung, bronchus, larynx or trachea for purposes of presumptive service connection based on herbicide exposure. Therefore, service connection on a presumptive basis is not warranted. 
When entitlement to a regulatory presumption of service connection for a given disability is not found, a claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the question becomes whether the Veteran's squamous cell carcinoma was directly related to his military service. Unfortunately, the evidence is against such a conclusion.

The Board acknowledges that the Veteran has submitted a copy of a prior Board decision in which service connection was granted for the cause of another veteran's death where the cause of death was squamous cell carcinoma of the head and neck which had originated in the right tonsil. The Board first notes that previously issued Board decisions are nonprecedential and considered binding only with regard to the specific case decided. See 38 C.F.R. § 20.1303. Therefore, this prior Board decision carries no precedential weight in the instant case. The Board also notes that in the prior Board decision submitted by the Veteran, there was a medical opinion of record finding a relationship between that veteran's oropharynx cancer and his herbicide exposure and service connection was granted on a direct rather than a presumptive basis.  There is no such opinion here, or any suggestion from the Veteran that a doctor has ever given him such an opinion. The Board also acknowledges the submission of a second prior Board decision by the Veteran, in which service connection was granted for left maxillary squamous cell carcinoma. The Board notes that this prior decision involved a squamous cell carcinoma with a primary site in the sinuses, which is a different type of cancer from the Veteran's tonsillar cancer. 

The Veteran's cancer did not begin during service. The Board notes that the Veteran's service treatment records include several notations of treatment relating to the tonsils and throat. In May 1967, the Veteran was diagnosed with tonsillitis and noted to have a sore throat on the left side. In April 1969, the Veteran was diagnosed with pharyngitis. An October 1969 Report of Medical Examination (RME) noted that the Veteran had enlarged tonsils, and the Veteran reported that he had had ear, nose, and throat trouble. The examiner noted that the Veteran's indication of ear, nose, and throat trouble referred to his tonsillitis, which had not been symptomatic in over a year. The Veteran's Mary 1972 separation examination contains no indication of abnormalities in the ear, nose, and throat, or elsewhere. The Veteran reported that he was in good health at separation, and did not note any ear, nose, and throat problems. Therefore, while the Board acknowledges that the Veteran was diagnosed with tonsillitis and pharyngitis during service, these conditions are not manifestations of squamous cell carcinoma during service. The Veteran's squamous cell carcinoma first manifested in 2010, 37 years after his separation from service.

Furthermore, there is no competent evidence of record relating the cause of the Veteran's cancer to his military service. The Veteran has submitted multiple statements regarding his opinion that his cancer was caused by his herbicide exposure during service. Unfortunately, as a layperson, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a particular cancer. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not submitted any statements from medical professionals as to the relationship between his cancer and his presumed herbicide exposure, nor has he reported being told by a medical professional that his cancer is related to herbicide exposure. There is no other competent evidence of record addressing a nexus between the Veteran's squamous cell carcinoma and his service. 

The Veteran's squamous cell carcinoma of the head, neck, and tonsils is a current disability for purposes of VA compensation, and therefore the first element of his claim of entitlement to service connection on a direct basis is met. The Veteran is presumed to have been exposed to herbicides during his service in Vietnam. However, there is no evidence of symptoms or a diagnosis of squamous cell carcinoma in service, and no competent evidence of a nexus between the Veteran's squamous cell carcinoma and his service. Therefore, the third element of the Veteran's claim of entitlement to service connection on a direct basis is not met. As such, service connection on a direct basis is not warranted.

In this case, the Veteran could also be afforded a presumption of service connection based on a chronic disease, as his squamous cell carcinoma is a malignant tumor. A malignant tumor is classified as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cancer, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

In this case, the evidence does not show any manifestations of a squamous cell carcinoma during service, nor does the evidence show any continuity of symptoms of a squamous cell carcinoma from the time of the Veteran's service to his diagnosis in 2010. The Veteran's squamous cell carcinoma also did not manifest within one year of his separation from service. The Veteran's cancer did not manifest until 2010, 37 years after his separation from service. Therefore, the chronic disease presumption cannot be applied and presumptive service connection based on a chronic disease is not warranted.

The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection on both a presumptive and direct basis. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).




II. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the head, neck, and tonsils.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and 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.  Compliance with the first element requires notice of the five service connection elements: (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.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  A September 2010 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in December 2010.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

The Board concludes an examination is not needed in this case because the only evidence indicating the Veteran's current disability is related to service is his own lay statements. Either competent lay or medical evidence is required to establish "an indication" that the Veteran's current disability is related to the in-service event on which the Veteran relies as the cause of his current disability. See Waters v. Shinseki, 601 F.3d 1274, 1277-78 (Fed. Cir. 2010). As discussed above, the Veteran offers only his own conclusory opinion regarding causation.  The etiology of squamous cell carcinoma is outside the realm of common lay knowledge.  The Veteran has not provided competent lay evidence derived from personal knowledge or what he has been told by a medical professional.  This is insufficient to satisfy the criteria of 38 U.S.C.A. 5103A(d)(2). See id. As there is no competent evidence of record demonstrating an indication that the current disability may be related to the in-service event, an examination is not warranted. See McLendon, 20 Vet. App. at 81-82.  


ORDER

Entitlement to service connection for squamous cell carcinoma of the head, neck, and tonsils is denied.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs