Citation Nr: 1336668 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-26 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for Stage IV tonsillar cancer (previously claimed as respiratory and oropharyngeal cancer), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to January 1969. The Veteran's service personnel records reflect that he had in-country service in Vietnam from January 27, 1968 to January 19, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a July 2012 travel board hearing that was held before the undersigned. A copy of the transcript of those proceedings is associated with the claims file. This matter was previously before the Board in June 2013. At that time, the Board referred the claim out to a medical specialist in order to obtain an independent advisory medical opinion on the issue of the etiology of the Veteran's claimed condition. The results of such opinion have been completed in July 2013 and accordingly associated with the claims file. This claim is once again before the Board. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. FINDING OF FACT The competent and credible medical evidence of record shows that the Veteran's Stage IV tonsillar cancer is not etiologically related to in-service herbicide exposure. CONCLUSION OF LAW Service connection for Stage IV tonsillar cancer is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in a letter dated December 2008, that contained all of the required notice. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), VA outpatient treatment records, and private treatment records have been obtained and associated with the claims file. Additionally, VA provided the Veteran with an independent medical opinion that was adequate because the examiner reviewed the claims file and provided rationales for the ultimate medical opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the undersigned identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for Stage IV tonsillar cancer, and the Veteran volunteered his subjective symptoms and employment history during the period under consideration. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be granted for chronic disabilities, such as certain types of cancer, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: certain types of cancer are listed among the diseases presumed to be associated with herbicide exposure. 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, there is now a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ (demilitarized zone) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307(a)(6)(iv). Service connection for a disability claimed as due to exposure to herbicide agents also may be established by showing that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his tonsillar cancer is similar to other respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) for which presumptive service connection has been established (see 38 C.F.R. § 3.309(e)) and therefore, should be considered as having developed as the result of exposure to herbicides in Vietnam. To this effect, he stated at his July 2012 Board hearing that he drove trucks that carried herbicides during a period in which their use was particularly widespread in the Vietnam War. The Veteran also submitted prior Board decisions in which service connection for tonsillar cancer due to herbicide exposure was granted. A review of the Veteran's service treatment records was negative for complaints or treatment of cancers. There is also no indication that the Veteran was treated for cancer within one year of leaving service. A review of the Veteran's private treatment record shows that in August 2008, the Veteran was found to have a painless left neck mass that was diagnosed as squamous cell carcinoma and a malignant left tonsillar mass with metastasis to the left jugular and left submandibular nodes. There was no indication of etiology or relationship to military service, to include herbicide exposure. A review of the Veteran's VA outpatient treatment records shows that his cancer was diagnosed as Stage IV. He was treated with a left tonsillectomy and left radical neck dissection. The Veteran then received follow-up treatment of radiation therapy and chemotherapy. In February 2009, the Veteran was seen by a medical oncologist and noted to be in complete remission. There was no indication of etiology or relationship to military service, to include herbicide exposure. The Veteran was provided with an independent medical opinion by a cancer specialist (Dr. S.K.) from the University of Massachusetts Medical Center in July 2013. The examiner reviewed the Veteran's claims file and relevant medical literature, a copy of which was attached as an addendum. The examiner noted the Veteran's diagnosis in August 2008, subsequent treatment, and remission in February 2009. The examiner also noted that in a December 2012 letter, the Veteran indicated that he would be a five year survivor as of August 2013, indicating continued remission. In reviewing the evidence, the examiner opined that the Veteran's cancer was not linked to herbicide exposure. In support, the examiner provided that the medical record gave a clear history of heavy tobacco smoking by the Veteran and that this activity was a well-known risk for head and neck cancers, as shown in his attached medical literature. The examiner maintained that as an experienced radiation oncologist specializing in the treatment of head and neck cancer, this linkage was commonplace. Further, the examiner noted that the onset of the cancer was 39 years after the presumed exposure and so it was difficult to imagine a malignant condition that would develop so long after the exposure to the offending agent. Exposure to cigarette smoke, however, was continuous. Last, the examiner provided that epidemiologic evidence, as seen in the Institute of Medicine (IOM) Committee to Review the Health Effects of Vietnam Veterans of Exposure to Herbicide, does not recognize head and neck cancers as causally linked. The examiner maintained that oropharyngeal cancer was classified as head and neck cancer, not respiratory. Analysis Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for Stage IV tonsillar cancer, so the appeal must be denied. The evidence does show that there is a current disability, as there is evidence that the Veteran has been diagnosed with Stage IV tonsillar cancer and treated for it in the Veteran's private treatment records and VA outpatient treatment records. Also, although it is presumed that the Veteran was exposed to herbicides in-service, as his service personnel records reflect that he served on land in Vietnam during a period between April 1, 1968, and August 31, 1971 in accordance with 38 C.F.R. § 3.307(a)(6)(iv), tonsillar cancer, which is a type of head and neck cancer as indicated by the July 2013 examiner, is not one of the types contemplated for presumption under 38 C.F.R. § 3.309(e). Further, there is no indication that the Veteran's cancer began within a year of service, as it was not diagnosed and treated until 39 years post-service. As the Board finds that the Veteran is not entitled to service connection on the basis of presumption, the Veteran must prove that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock, 10 Vet. App. at 162-64; Combee, 34 F.3d at 1044, citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. The Veteran's private treatment records and VA outpatient treatment records did not provide any positive etiology opinions for the Veteran's current tonsillar cancer relating it to military service or herbicide exposure therein. The Board is cognizant of the other Board decisions the Veteran submitted in support of his claim. Board decisions, however, are not precedential; each case presented to the Board is to be decided on the basis of the individual facts of the case. 38 C.F.R. § 20.1303 (2013). The only etiological opinion of record specific to the Veteran, which was provided in July 2013 by a cancer specialist, found that the Veteran's cancer was not linked to herbicide exposure. The examiner provided a supporting rationale for finding no relationship. The examiner reviewed the Veteran's medical records and consulted medical literature, of which he attached a copy to his opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's tonsillar cancer is etiologically related to in-service herbicide exposure, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the medical evidence of record does not indicate that the Veteran's Stage IV tonsillar cancer was caused by his military service, nor can it be presumed as due to such service. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990 ORDER Entitlement to service connection for Stage IV tonsillar cancer (previously claimed as respiratory and oropharyngeal cancer), to include as due to herbicide exposure is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs