Citation Nr: 1454809 Decision Date: 12/12/14 Archive Date: 12/17/14 DOCKET NO. 11-19 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to herbicides. 2. Entitlement to service connection for asbestosis, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Brian Walker, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran had active service from June 1967 to October 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2014, the Veteran testified in front of the undersigned at a Travel Board hearing. A transcript of the hearing has been uploaded in the Veteran's Virtual VA file. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era, and his exposure to herbicide agents, to include Agent Orange, is presumed. 2. The record evidence is at least in equipoise as to whether squamous cell carcinoma of the right tonsil is due to exposure to herbicides in service. 3. The Veteran's specialty in service was a fireman and he worked in the ships boiler room, therefore he moist likely was exposed to asbestos in service. 4. The record evidence is at least in equipoise as to whether asbestosis is due to exposure to asbestos in service. CONCLUSIONS OF LAW 1. Squamous cell carcinoma of the right tonsil was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for asbestosis were met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In the instant case, the decision below is fully favorable to the Veteran. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Legal Criteria and Analysis 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. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). A veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); see also VAOPGCPREC 27-97. When such a veteran contracts a disease associated with exposure to herbicides (listed in 38 C.F.R. § 3.309(e) ) that becomes manifest to a compensable degree within the time period specified in 38 C.F.R. § 3.307(a)(6)(ii), the disease will be considered to have been incurred in service, even though there is no evidence of such a disease during the period of service. These conditions include: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32,407 (Jun. 12, 2007). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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 Court of Appeals for Veterans Claims (the Court) has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. 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; 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. A. Asbestosis The Veteran contends that he has asbestosis which was caused by exposure to asbestos in service. At the outset, the Board notes that the record reflects that the Veteran worked in the boiler room of his ship and his specialty was fireman. This type of service would make it probable that he was exposed to asbestos in service. Therefore, the remaining question to be answered is if the Veteran has asbestosis which is due to exposure to asbestos in service. As to asbestos-related diseases, the Board notes that there are no laws or regulations specifically dealing with asbestos and service connection. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (acknowledging that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations). The VA Adjudication Procedure Manual, M21-1 (M21-1), however, and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel, provide guidance in adjudicating these claims. In 1988, VA issued the Department of Veterans Benefits (DVB) Circular 21-88-8, which provided guidelines for considering asbestos compensation claims. See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In this regard, the M21-1MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Private x-rays of August 2002 note a finding of interstitial fibrosis at the lung bases typical of previous asbestos exposure indicating asbestosis. A May 2010 VA examination found no evidence of asbestosis by clinical history, physical examination, pulmonary function tests or x-rays. X-rays showed calcified granuloma within the periphery of the right upper lobe. Pulmonary function test showed obstructive pattern with mild impairment, no significant bronchodilator response and diffusion within normal limits. There are two medical findings of record, one that shows a diagnosis of asbestosis and one that does not. As noted, the private physician rendered a diagnosis of asbestosis while the VA examiner did not. Both based their findings primarily on x-rays. Moreover, both are physicians. Thus, the findings remain probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, no nexus opinion as to the asbestosis was provided. The VA examiner failed to provide an opinion as no diagnosis of asbestosis was provided. The private medical evidence is comprised of only the x-ray findings. However, the private record notes that the interstitial fibrosis is typical of asbestos exposure. The only reported exposure to asbestos is that in service. Finally, and significantly, the VA examiner provided no explanation as to the differing x-ray findings. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran has asbestosis that is related to exposure to asbestos in service. Accordingly, after a full review of the totality of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board determines that service connection for asbestosis is warranted. B. Squamous cell carcinoma of the right tonsil In this case, the Veteran seeks entitlement to service connection for squamous cell carcinoma of the right tonsil as due to exposure to herbicide agents while he was stationed in Vietnam. The Veteran's service records show that he served in the Republic of Vietnam. Thus, his exposure to herbicide agents is presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). At the outset, the Board notes that the Veteran has also argued that his cancer of the right tonsil could be due to exposure to Hexavalent Chromium while working in the boiler room aboard a ship in service. As the Board is findings below that the Veteran's cancer of the right tonsil/pharynx is due to exposure to Agent Orange, a discussion as to the possibility of it being due to exposure to Hexavalent Chromium is not needed. Medical evidence of record reflects the Veteran's treatment for squamous cell carcinoma of the right tonsil. This condition is currently in remission. . With regard to the matter of the etiology of the squamous cell carcinoma of the right tonsil, the Board acknowledges that this disorder is not a disability presumed to be related to herbicide exposure. 38 C.F.R. § 3.307, 3.309(e). In any event, however, while service connection for this disability based on conceded in-service exposure to herbicides may not be awarded on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See also 38 C.F.R. § 3.303(d) & Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984); Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991). The record in the current appeal contains three opinions that discuss the relationship between the Veteran's cancer and his military service. First, the Veteran underwent a VA examination in May 2010. The examiner, acknowledged the Veteran's history of squamous cell carcinoma and the fact that he had been exposed to Agent Orange and asbestos while serving in Vietnam. The examiner opined that "[c]urrent medical literature does not support causation between asbestos exposure and tonsil cancer." The examiner also opined that "medical literature would not support causation between tonsil cancer and Agent Orange." He summarized by stating that it is less likely than not that the Veteran's tonsil cancer might be related to asbestos exposure or possible Agent Orange exposure. Second, a private medical opinion of April 2013 from the Veteran's oncologist, Dr. J.B., notes the Veteran's diagnosis of cancer of the pharynx and the treatment for the same. He provided an opinion stating that "[d]ue to the location and the unique aspects of [the Veteran's] cancer, it is as likely as not that exposure to Agent Orange and/or Hexavalent Chromium was the cause of [the Veteran's] cancer." Finally, an additional private medical opinion of April 2013 from another of the Veteran's treating physicians, Dr. J.W., provides an opinion that the Veteran's exposure to Agent Orange and or Hexavalent Chromium during service in Vietnam, is more likely the causative agent for his oropharyngeal cancer. The Board acknowledges that the private physicians referred to cancer of the pharynx and oropharyngeal cancer rather than cancer of the tonsils. However, the tonsils are part of the pharynx and therefore, the Board considers the private physicians' opinions to refer to the claimed tonsil cancer. Moreover, the record shows the Veteran has been diagnosed with and treated for a single cancer, whether referred to as cancer of the tonsils, pharynx or oropharyngeal cancer. The record is clear as to the disability being claimed. The Board further notes that it is not clear whether the private physicians reviewed the Veteran's claims file. Moreover, Dr. J.B.'s rationale is not very specific and Dr. J.W. did not provide a rationale. However, the VA examiner's rationale is equally non-specific in that it does not identify the medical literature relied upon. The record does reflects that all providers were familiar with the Veteran's medical history, to include the development of his cancer. Thus, the opinions remain probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the medical evidence of record is at least in equipoise as to the etiology of the Veteran's cancer of the right tonsil. Accordingly, after a full review of the totality of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the record of evidence is at least in equipoise as to whether the Veteran's squamous cell carcinoma of the right tonsil was caused by exposure to Agent Orange in service. Accordingly, the Board determines that service connection for squamous cell carcinoma of the right tonsil is warranted. The Board further notes that, while not argued by the Veteran, service connection for cancer of the larynx/tonsils would also be warranted as due to exposure to asbestos. Indeed, as noted above, the Veteran was exposed to asbestos in service. Moreover, cancer of the larynx has been noted to be an asbestos-related disease. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). Therefore, service connection for cancer of the larynx/right tonsil, would also be warranted as due to exposure to asbestos. ORDER Entitlement to service connection for squamous cell carcinoma of the right tonsil is granted. Entitlement to service connection for asbestosis is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs