Citation Nr: 1337257 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-13 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for carcinoma of the right tonsil. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1971 in the United States Army, during which time his military records confirm that he was stationed within the territorial confines of the Republic of Vietnam from March 1969 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2099 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for carcinoma of the right tonsil. FINDING OF FACT Carcinoma of the right tonsil did not have its onset during, or as a result of, active military service. CONCLUSION OF LAW Carcinoma of the right tonsil was not incurred in, or as a result of, active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. With respect to the claim decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The claim for service connection for carcinoma of the right tonsil was filed in March 2009, and a VCAA notice letter addressing this issue was dispatched to the Veteran in that same month, prior to the initial adjudication of this claim in the April 2009 rating decision now on appeal. This letter satisfies the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial RO adjudication of the claim decided herein, there is no timing of notice defect. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the service connection claim adjudicated herein. As pertinent to the claim for service connection for carcinoma of the right tonsil, the Veteran's service treatment records and all relevant post-service records from VA and private sources have been obtained and associated with the evidence. The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information database for any additional pertinent medical records. The Board notes that the Veteran was not provided with a VA examination addressing the claim for service connection for carcinoma of the right tonsil. However, this deficit does not render the existing record unusable for purposes of adjudicating the claim on the merits. The Board is mindful of the test prescribed by the United States Court of Appeals for Veterans Claims (Court) in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), regarding whether a medical examination is necessary to adjudicate a claim, and finds that the absence of an examination addressing this issue is not prejudicial to the Veteran's claim as he has not met the criteria under McLendon to warrant such an examination and, furthermore, the service and post-service VA and private medical records presently associated with the claims file provide sufficient evidence to decide the claim. A VA examination is therefore not necessary to adjudicate this particular matter. Specifically, the Board finds that the Veteran has not met all four elements set forth in McLendon, which emphasize that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim. As will be further discussed below, the Board has determined that the competent and credible evidence does not objectively establish an in-service event, injury, or disease relating his current diagnosis of carcinoma of the right tonsil to his period of active service. The second and third elements of the McLendon test have not been met. Therefore, the absence of a clinical examination addressing the claim for VA compensation for carcinoma of the right tonsil does not constitute a breach of VA's duty to assist. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 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 appellant 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 claim. The appellant 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 claimant). 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits of the Appeal The Veteran asserts that he currently suffers from the residuals of tonsillar cancer attributable to exposure to herbicides while on active duty in Vietnam. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of certain statutory presumptions, if applicable. 38 C.F.R. § 3.303(a) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). . Presumptive service connection may also be granted for malignant tumors as a chronic disease, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). A grant of service connection under 38 C.F.R. § 3.303(b) within the presumptive period does not require proof of the nexus element; it is presumed. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed under 38 C.F.R. § 3.309(a), and the term "continuity of symptomatology" as an alternative method of demonstrating service connection applies only to these "chronic diseases." See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). In this case, the law provides a presumption of service connection for certain diseases, including respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), which become manifest after separation from service in veterans who served in the Republic of Vietnam during the period from January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, service connection may be granted on a direct basis for any disease (not specifically identified in 38 C.F.R. 3.309(e)) diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran entered active duty in January 1968. His service medical records show a normal throat during his induction and separation examinations and no diagnosis or treatment for a chronic disability relating to his tonsils or pharynx during active duty. He was honorably discharged from active duty in January 1971. His service records reflect that he served as an air traffic controller in the United States Army and that he was stationed in the Republic of Vietnam from March 1969 to March 1970. Post-service medical records reflect that the Veteran was first diagnosed and treated in December 2007 for an invasive squamous cell carcinoma of the right tonsil with extension through the underlying layer of musculature involved in mastication. This was over 35 years after separating from active duty. Therefore, the Veteran is not entitled to service connection for right tonsil carcinoma on a presumptive basis for tonsil cancer manifest to a compensable degree within one year following his discharge from active duty in January 1971. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). And as the Veteran had not had any symptoms or manifestation of the tonsil cancer until after several decades had passed since separation from service, service connection on a direct basis through continuity of symptomatology is similarly not warranted. Private and VA medical records reflect that the Veteran underwent chemotherapy, radiation therapy, and surgery for treatment of his right tonsil cancer during the period from December 2007 to January 2009. No cancerous involvement of the larynx or respiratory system was clinically demonstrated in the pertinent medical records. In this regard, the records reflect that the Veteran was admitted into a private emergency room in June 2008 for treatment of fever, during which time the emergency room admission report noted that he had "laryngeal cancer," per the patient's own reported history. The Board finds that this history is incorrect and does not demonstrate a valid diagnosis of laryngeal cancer. Firstly, the notation of "laryngeal cancer" was based solely on the Veteran's unsubstantiated historical account to the admitting emergency room physician and does not represent, per se, an actual diagnosis of laryngeal cancer. But more importantly, the objective medical records also do not establish an actual diagnosis of laryngeal cancer as a clinical entity at any time during the pendency of this claim. Rather, all of the clinical evidence, including CT and PET scans, laryngoscopies, and other clinical and medical imaging tests performed during the period from December 2007 to May 2011, confirmed that the cancer involved only the Veteran's pharynx, salivary glands, right tonsil, and underlying chewing muscles, with no involvement of his respiratory tract (including his lungs, bronchus, trachea, or larynx). Therefore, although cancer of the larynx is a disease that is presumptively linked to Agent Orange exposure during Vietnam service (see 38 C.F.R. § 3.309(e) (2013)), as the objective medical evidence fails to establish that the Veteran, in fact, has a valid diagnosis of laryngeal cancer, he is not entitled to VA compensation for this disease on a presumptive basis. While the Board concedes that the appellant, who is a Vietnam War Era veteran, was exposed to chemical herbicides during active service while stationed within the territorial confines of the Republic of Vietnam, the Board emphasizes that his currently diagnosed carcinoma of the tonsils (and, for that matter, tonsil cancer extending to the salivary glands and chewing muscles of the pharynx) is not a disease specifically recognized in the applicable regulations as being presumptively due to Agent Orange exposure. 38 C.F.R. § 3.309(e). However, service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed the clinical evidence thoroughly, but it finds nothing that objectively links the Veteran's carcinoma of the right tonsil and its related complications to his period of military service. The right tonsil carcinoma itself was not manifest until over 35 years had elapsed since the Veteran's separation from active duty. A lengthy period without treatment of the claimed disability weighs against a finding of that the current disability is related to service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In the absence of any objective medical evidence or opinion associating the Veteran's carcinoma of the right tonsil with his period of active duty, the Board finds no basis to allow this claim. Service connection for carcinoma of the right tonsil must therefore be denied. The Board notes that the Veteran makes the argument that his right tonsil cancer should be presumed to be due to his in-service exposure to chemical herbicides, per 38 C.F.R. § 3.307(e), because the site of his right tonsil cancer is in his pharynx, which is so closely adjacent to his larynx and the airway of his respiratory system to be virtually indistinguishable in its affected location, such that the regulatory presumptions that apply to respiratory cancers (including the lungs, bronchus, trachea, and larynx) should also be permitted to extend to cancers of the pharynx. Firstly, the applicable laws and regulations are very specific as to which cancers are presumed to be due to Agent Orange exposure, based on the clinical research conducted at the behest of the VA Secretary, and these make no such provision to allow service connection for a disease not listed in 38 C.F.R. § 3.309(e). The Board does not have the discretion to interpret the regulatory provision specifically recognizing respiratory cancer as also including tonsil cancer as a disease presumed to be due to Agent Orange exposure. Furthermore, to the extent that the Veteran attempts to relate his carcinoma of the right tonsil to his period of active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician. The records show that his service military occupational specialty was as an air traffic controller and that his post-service career involved the founding of his own media company (which he had recently sold). However, the records do not reflect that he ever received any formal medical training. Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the actual etiology of his carcinoma of the right tonsil falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a probative medical opinion linking this disease to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose internal diseases of the pharynx, such as carcinoma of the right tonsil). His argument that his right tonsil cancer affects the same anatomical location as his respiratory tract, for purposes of establishing service connection for carcinoma of the right tonsil on the same presumptive basis provided in the regulations for respiratory cancers as due to Agent Orange exposure, is therefore unpersuasive. In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for carcinoma of the right tonsil as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for carcinoma of the right tonsil is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs