Citation Nr: 1534152 Decision Date: 08/10/15 Archive Date: 08/20/15 DOCKET NO. 12-09 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for cancer of the neck and tongue, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to May 1970, to include service in the Republic of Vietnam (RVN) from December 13, 1968 to December 12, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO, in part, denied service connection for carcinoma of the tongue and neck, to include as due to herbicide exposure. The Veteran appealed this rating action to the Board. In August 2012, the Veteran testified at a hearing before the undersigned at the above RO. A copy of the hearing transcript has been associated with the Veteran's Veterans Benefits Management System (VBMS) electronic record. In December 2014, the Board remanded the appeal to the RO for additional development; specifically, to obtain outstanding private and VA treatment records. The requested development has been completed and the matter has returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran served in the RVN; thus, his exposure to Agent Orange (AO) is presumed. 2. The Veteran's cancer of the neck and tongue metastasized from his right tongue base and did not manifest to a compensable degree within one year of the Veteran's discharge from military service in May 1970 and it is not etiologically related thereto, to include his presumed exposure to Agent Orange. CONCLUSION OF LAW Cancer of the neck and tongue was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been incurred or aggravated therein, including from herbicide exposure in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits of the issue of entitlement to service connection for neck and tongue cancer, to include as due to Agent Orange exposure, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (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). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified pre-adjudication in a September 2010 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter addressed all notice elements and predated the initial adjudication of the service connection claim decided herein by the RO in August 2011. Nothing more was required. The above-cited letter also informed the Veteran of how VA determines disability ratings and effective dates if service connection is awarded. Dingess, supra. VA has also fulfilled its duty to assist the Veteran with respect to his claim on appeal. VA has obtained the Veteran's service treatment records (STRs), DD 214, and voluminous post-service VA treatment and examination reports. In addition, the Veteran, as well as his representative, submitted numerous written statements and provided testimony before the undersigned. As noted above, the issue on appeal was most recently remanded by the Board in December 2014 for further development Specifically, the Board instructed the RO to obtain treatment records from the Veteran's private physician concerning his cancer treatment and treatment records from the Erie, Pennsylvania, VA Medical Center (VAMC), dated from October 2012 to the present. Thereafter, the Board received treatment reports, many of which were duplicates of those previously of record, from the MD Anderson Cancer Center. In addition, treatment reports, dated from October 2013 to January 2015, from the above VAMC were also associated with the Veteran's electronic record. Accordingly, the Board finds that there has been substantial compliance with its December 2014 remand directives with respect to the matter on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was not provided with an examination to obtain a medical nexus opinion with regard to his claim for service connection for neck and tongue cancer, to include as due to Agent Orange exposure. The Board finds that an examination is not necessary as the standards of McClendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met in this case to require scheduling a VA examination for a medical nexus opinion. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Specifically, and as will be explained in more detail below, the evidence does not indicate that cancer of the tongue and neck was shown in service or shortly following discharge from service. There is also no indication that the Veteran's cancer of the neck and tongue is etiologically related to service, to include his presumed exposure to Agent Orange in the RVN. Hence, a remand for an opinion is not necessary to decide this claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (VA is not obligated to provide an examination for a medical nexus opinion where the supporting evidence of record consists only of unsubstantiated lay allegations establishing the required association between this current disability and service.) Finally, a discussion of the Veteran's August 2012 hearing before the undersigned is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified at the above-cited hearing. Information was also elicited from the Veteran concerning the primary site of his metastatic cancer. (Transcript (T.) at pages (pgs.) 3-5)). Relevant evidence, in particular treatment records from the Veteran's private physician surrounding his cancer treatment, were identified by the Veteran. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits Analysis The Veteran seeks service connection for neck and tongue cancer, claimed as due to Agent Orange exposure. Service connection may be granted for a 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(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as malignant tumors. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Applicable regulations provide that a veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). Here, the Board finds the Veteran is presumed to have been exposed to herbicides, since his DD Form 214 confirms he served in the RVN during the Vietnam War. 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL Amyloidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy (previously known as acute or subacute peripheral neuropathy); porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia and other chronic B-cell leukemias; and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft tissue sarcoma" includes malignant schwannoma. 38 C.F.R. § 3.309(e) and Note (1). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) . However, 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 59 Fed. Reg. 341-46 (Jan. 4, 1994); see also 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); 72 Fed. Reg. 32,345-32,407 (June 12, 2007). Although cancer of the lung, bronchus, larynx or trachea are presumptive diseases as set forth in 38 C.F.R. § 3.309(3), the competent and probative evidence of record shows that the primary site of the Veteran's neck and tongue cancer was the base of his right tongue. (See May 2010 report, prepared by MD Anderson Cancer Center). Thus, the Veteran's neck and tongue cancer cannot be presumptively service connected on the basis of herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. Significantly, where a cancer is not the primary cancer, but is merely the location where a primary cancer has metastasized, the secondary cancer cannot be considered presumptively related to herbicide exposure. See VAOPGCPREC 18-97 (May 2, 1997) (metastasis represents the progress of the nonservice-connected primary cancer, and is affirmative evidence that the secondary cancer was not the result of some other cause, such as herbicide exposure). In the absence of a diagnosed disease for which the Agent Orange presumption applies, 38 C.F.R. § 3.307(a)(6)(iii) is not applicable. The Veteran's claim of service connection for cancer of the neck and tongue can be asserted on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has also considered the Veteran's contentions, but finds that the preponderance of the evidence is against the claim for service connection for cancer of the neck and tongue, to include as due to Agent Orange exposure on a direct incurrence or chronic disease presumptive basis. The Veteran's service treatment records are silent for any reports or physical examination findings of neck and tongue cancer. February 1968 and February 1970 service separation examination reports reflect that the Veteran's head, face, neck and scalp were evaluated as normal. On accompanying Reports of Medical History, the Veteran denied having had any ear, nose or throat trouble and any tumor, growth, cyst, or cancer. On DA Form 3082-R, Statement of Medical Condition, dated in early May 1970, the Veteran stated that his medical condition had changed since his last separation examination. He clarified by stating that he had received treatment for a pilonidal cyst in April 1970. There is also no evidence that the Veteran was diagnosed as having any form of cancer until August 2007. (See August 2007 report prepared by MD Anderson Cancer Center, reflecting that a June 2007 biopsy of the right neck lymph node revealed metastatic cystic squamous carcinoma). In other words, there is no basis for establishing service connection on a direct (3.303(a)) or chronic disease presumptive basis (3.307, 3.309(a)). Finally, the Veteran has not submitted any medical evidence of a nexus between his cancer of the neck and tongue, with the primary site recognized as the right base of the tongue in May 2010, and his period of active military service, to include his presumed exposure to Agent Orange. The record is simply absent a competent positive opinion of this nature. While 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, etiology of metastatic cancer of the tongue and neck, it 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) (lay persons not competent to diagnose cancer). The Board emphasizes that the Federal Circuit specifically held cancer is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that a biopsy and other specific findings are needed to properly assess and diagnose the disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as swollen and/or painful neck and/or tongue, there is no indication that the Veteran is competent to etiologically link his current diagnosis of cancer of the neck and tongue to his presumed exposure to herbicide agents. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating cancers of the mouth and neck. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As noted previously herein, pursuant to the Board's December 2014 remand directives, the Veteran was provided an ample opportunity to secure medical evidence in his favor and submit the same to VA, but he failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for cancer of the neck and tongue, to include as due to Agent Orange exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs