Citation Nr: 1337611 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 04-41 479A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for squamous cell carcinoma, left tonsil, due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to December 1974 and from October 1976 to October 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the RO. In March 2010, August 2011, and September 2012, the Board remanded the matter on appeal to the Appeals Management Center (AMC) in Washington, D.C. for additional development. After taking further action, the AMC confirmed and continued the prior denial and returned the case to the Board. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains additional evidence-including additional VA medical records and a September 2013 brief from the Veteran's representative-which the Board has reviewed. FINDINGS OF FACT 1. The cancer for which the Veteran is seeking service connection is a tonsillar carcinoma. 2. Tonsillar carcinoma was not present until many years after service, and is not etiologically related thereto. CONCLUSION OF LAW Tonsillar cancer was not incurred in or aggravated by service; nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the Veteran was provided VCAA notice in a letter sent in May 2003, prior to the initial adjudication of his claim. He was afforded additional VCAA notice in January 2007, addressing requirements outlined in Dingess. These notice letters satisfied the requirements of the VCAA in this case, including remedying any issues of untimeliness of notice by providing adequate notice with sufficient opportunity to respond and develop the claim. The record also reflects that the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent possible. Neither the Veteran nor his representative has identified any additional, outstanding evidence that can be obtained to substantiate the claim. The Board is also unaware of any such evidence. In the context of a claim for service connection, VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran is claiming that he has cancer for which service connection is warranted based on his exposure to herbicide agents in service. It is clear from the medical evidence that he has tonsillar cancer. Tonsillar cancer is not subject to presumptive service connection based on herbicide exposure. In addition, there is no evidence suggesting that tonsillar cancer was present in service or until many years thereafter. The Veteran has also not presented medical evidence supporting a causal link between herbicide exposure and his tonsillar cancer. Moreover, there is no competent evidence indicating that the cancer may be associated with the Veteran's service or with another service-connected disability. As such, a VA examination and opinion in this case was not required. 38 C.F.R. § 3.159(c)(4)(i). VA examinations were nevertheless obtained to address the question of a causal link between exposure to herbicide agents and the Veteran's claimed tonsillar cancer. As discussed below, the opinions contained in the reports of those examinations either do not support a causal link between herbicide agents and the Veteran's tonsillar cancer, or contain medical opinions weighing against such a link. Also as discussed below, typographical errors, and inadequate statements of opinion in the obtained VA medical opinions, have been clarified to the extent possible. The available reports, taken as a whole, and with consideration of the other evidence of record, are sufficient to support the Board's adjudication of the claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). During the course of this appeal, delays resulted from stays imposed as a result of pending litigation surrounding claims based on presumed exposure to herbicides. The appellate process was resumed once the litigation was resolved and the stays were lifted. See Haas v. Nicholson, 20 Vet. App. 257 (2006); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Thus, although the Veteran's case was before the Board in December 2006 and June 2008 on another, unrelated issue, the stay then in effect precluded Board action on the matter currently under consideration. After the stay was lifted, the Board remanded the case in March 2010, August 2011, and September 2012 for additional development. The requested development consisted of seeking clarification of an opinion from a March 2004 VA examiner, attempting to verify the Veteran's exposure to herbicides, obtaining a further medical opinion addressing the link between the Veteran's tonsillar cancer and exposure to herbicides, obtaining an addendum medical opinion and indicated treatment records, and, ultimately, readjudication of the claim with issuance of a supplemental statement of the case. As discussed below, the report from the March 2004 VA examiner contained what appears to be a typographical error. An addendum could not be obtained from that examiner, and a new VA examination was obtained in September 2011. The opinion resulting from that examination was deficient. As such, an addendum was obtained in January 2013. It appears from the record that all requested development has been completed, to the extent possible, and that there has been at least substantial compliance with the directives contained in Board's remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a Veteran serves for at least 90 days during a period of war, or after December 31, 1946, and a malignant tumor manifests to a degree of 10 percent or more during the one-year period following the date of termination of such service, the tumor shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of the tumor during service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease first diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Tonsillar cancer is not among the diseases subject to presumptive service connection on the basis of herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); 74 Fed. Reg. 21258 -21260 (May 7, 2009); 75 Fed. Reg. 32540 (June 8, 2010). The Secretary has specifically indicated 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 cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses). See 75 Fed. Reg. 32540 (June 8, 2010), 75 Fed. Reg. 81332 -81335 (December 27, 2010). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicides. Brock v. Brown, 10 Vet. App. 155 (1997). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran has advanced contentions to the effect that he may have been exposed to herbicides during service, to include: (1) on one occasion, when a 55-gallon drum containing herbicides was punctured and spilled on him while aboard the USS Chara (AE-31) during the period from May 1971 to November 1971; (2) on another occasion, when he stood duty on a dock when the USS Chara went into port in Vietnam in order to offload an injured sailor; and (3) during service in Thailand. Efforts have been undertaken to verify his exposure to herbicides. Ultimately, however, the Board finds that whether or not the Veteran was so exposed is not dispositive of his appeal. Rather, his case turns on the nature of the disability for which he is claiming service connection, and the available medical evidence. The Veteran is seeking service connection for squamous cell carcinoma of the left tonsil. As noted above, presumptive service connection based on exposure to herbicides is permitted only for those diseases recognized as entitled to that presumption, by statute and regulation. Squamous cell carcinoma of the tonsil is not among the conditions listed. As such, service connection for that disability cannot be established on a presumptive basis, as due to exposure to herbicides. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); 75 Fed. Reg. 32540 (June 8, 2010), 75 Fed. Reg. 81332 -81335 (December 27, 2010). The Veteran's representative has in the past pointed to a March 2004 VA medical opinion as supportive of a causal link between the Veteran's tonsillar cancer and in-service exposure to herbicides. However, the March 2004 opinion contains what appears to be a typographical error. The examiner stated, in pertinent part: Review of the current medical conditions which are known to be associated with Agent Orange does not show an association between carcinoma in situ of the tonsil and Agent Orange exposure. Therefore, it is fair to conclude that it is as likely as not that his carcinoma in situ is a result of his exposure to Agent Orange during his time served in the service. Inasmuch as the second sentence of the examiner's statement is preceded by the observation that the claimed carcinoma is not one of the medical conditions known to be associated with herbicide agent exposure, and begins with the word "[t]herefore," it appears that the phrase "as likely as not" was meant to read "not as likely as not." (Emphasis added.) As such, the opinion provides no support for the Veteran's claim. In any event, the Board need not here address the medical statement further. It is sufficient to note that even if the examiner intended to state "as likely as not" rather than "not as likely as not," then the medical opinion must be rejected as internally inconsistent and based on an inaccurate factual premise, because the factual predicate relied upon for the statement supports precisely the opposite position. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (a medical opinion is inadequate when unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). A corrective VA examination and medical opinion in September 2011 (with addenda, to include in January 2013), was conducted to remedy the shortcomings of the March 2004 opinion. That examiner concluded, in effect, that it was unlikely, given the available medical literature, that the Veteran's tonsillar cancer was related to herbicide exposure. The Veteran, as a layperson, is not competent to address the complex question of the causal link between exposure to herbicides and the subsequent development of tonsillar cancer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has not otherwise presented any competent, probative evidence to support such a link. As such, the record provides no basis for granting his claim under Combee. As for other theories of service connection, the Veteran has not contended, and the record does not support, that his tonsillar carcinoma first manifested in service or within the first post-service year. Nor does the record support a conclusion that his tonsillar cancer is otherwise directly related to service, or that it has been caused or aggravated by an already service-connected disability. As such, there is no basis for granting the claim on a direct or secondary basis, or as presumptively due to service based on manifestations during the first post-service year. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board has considered the benefit-of-the-doubt doctrine. However, inasmuch as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert. The appeal must be denied. ORDER Service connection for squamous cell carcinoma of the left tonsil is denied. ____________________________________________ DAVID A. BRENNINGMEYER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs