Citation Nr: 1550972 Decision Date: 12/04/15 Archive Date: 12/16/15 DOCKET NO. 09-20 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma at the base of the tongue (originally claimed as respiratory/lung cancer), to include as due to herbicide exposure, based on substitution of the appellant. 2 Entitlement to service connection for bone metastasis, right L3 vertebral body (claimed as the third vertebra in the back), as secondary to herbicide exposure and squamous cell carcinoma at the base of the right tongue (originally claimed as respiratory cancer), based on substitution of the appellant. 3. Entitlement to service connection for bone metastasis of the left clavicle (claimed as left shoulder), as secondary to herbicide exposure and squamous cell carcinoma at the base of the right tongue, based on substitution of the appellant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active duty service from September 1968 to December 1969, including service in the Republic of Vietnam (RVN) from June 1969 to November 1969. The Veteran died in July 2012. The appellant is appealing on behalf of her and the Veteran's minor daughter. The appellant has been substituted as to the issues on appeal that were previously dismissed by the Board in a September 2012 decision. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the St. Paul, Minnesota Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO, in part, denied entitlement to service connection for lung cancer; bone metastases of the right L3 vertebral body; and bone metastases of the left clavicle, each to include as due to Agent Orange exposure. The Veteran appealed this rating action to the Board. For claimants who died on or after October 10, 2008, as in the instant case, the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C. § 5121A (West 2014), which permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. The appellant, who is the parent of her and the Veteran's minor child, requested to be substituted for the Veteran pursuant to 38 U.S.C.A. § 5121A. The RO granted the appellant's request for substitution with respect to the issues on appeal in a May 2014 memorandum. Accordingly, the Board will address the claims with the appellant as the substituted party. (Parenthetically, the Board observes that in a July 2015 written argument to the Board, the Veteran's representative included entitlement to service connection for cataracts as an issue on appeal. In a November 2010 decision, the Board dismissed this issue because the Veteran had withdrawn it during a July 2010 hearing. Thus, there is no claim for service connection for cataracts for which the appellant can be substituted in the instant appeal). Finally, by a May 2014 rating action, the RO denied a claim for service connection for an acquired psychiatric disorder and posttraumatic stress disorder (PTSD) for accrued benefits purposes only. The RO informed the appellant of its decision in a June 2014 letter. The RO, however, did not consider the claims for service connection for an acquired psychiatric disorder and PTSD on a substitution basis. The Board does not have jurisdiction to make a determination regarding substitution in the first instance. Rather, such a determination must be made by the agency of original jurisdiction (AOJ)). Accordingly, the claim for service connection for an acquired psychiatric disorder and PTSD for substitution purposes by the appellant is REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) from June to November 1969; thus, his exposure to Agent Orange is presumed. 2. The record contains a probative medical opinion that it is more likely than not that the Veteran's squamous cell carcinoma of the base of the right tongue was caused by his presumed in-service exposure to Agent Orange; this opinion took into consideration the medical history specific to this Veteran, to include his known risk factors. 3. The Veteran's bony metastases to the left clavicle and right L3 vertebral body were related to his service-connected squamous cell carcinoma of the base of the right tongue. CONCLUSIONS OF LAW 1. Squamous cell carcinoma of the base of the right tongue was incurred as a result of service. 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 (2015). 2. Bony metastasis of the left clavicle was related to the Veteran's squamous cell carcinoma of the base of the right tongue. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 3. Bone metastasis, right L3 vertebral body, was related to the Veteran's squamous cell carcinoma of the base of the right tongue. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board finds that because its decision to award service connection for the issues on appeal in the decision below is a complete grant of the benefits sought, a discussion of VA's duty to notify and assist is not necessary. The appellant contends that the Veteran's cancer was caused by military service, to include his presumed exposure to Agent Orange during active military service in the RVN. She maintains that the primary site of his cancer was located in this throat. In addition, she contends that the Veteran's diagnosed invasive squamous cell carcinoma was located in-between the larynx and esophagus; thus, it was a respiratory cancer and service connection should be awarded on a presumptive basis. The Board finds that service connection for the cancers on appeal on a presumptive basis is not warranted because the preponderance of the evidence of record shows that the primary site of the Veteran's cancer was located in his tongue and was not a respiratory cancer. The Board will discuss each theory of service connection (presumptive and direct) separately in its analysis below. 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). Thus, the theory of continuity of symptomatology is applicable to the current claims. 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 the National Personnel Records Center confirmed that he had served in the RVN during the Vietnam War June to November 1969. 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 RVN 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 cancers of the lung, bronchus, larynx or trachea are presumptive diseases as set forth in 38 C.F.R. § 3.309(e), the competent and probative evidence of record shows that the primary site of the Veteran's cancer was at the right tongue base. (See May 2007 and July 2008 positron emission tomography (PET) scans of the Veteran's body, prepared by St. Paul Radiology; May and June 2007 reports, prepared by V. H., M. D., and V. L., M. D., respectively; December 2008 and October 2011 VA examination report and opinion respectively; and, January 2012 report, prepared by V. H. M. D.). In addition, in a statement, received by VA in August 2010, V. C., M. D. opined that the Veteran's primary lesion was in the oropharynx, throat, as opposed to his tongue. Once again, the Board notes that only respiratory cancers, which include cancers of the lungs, bronchus, larynx and trachea, are presumed to have resulted from exposure to an herbicide agent such as Agent Orange. The Veteran's squamous cell cancer of the 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 base of the right tongue can be asserted on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds that the evidence supports an award of service connection for squamous cell carcinoma of the base of the right tongue on a direct service connection basis. As such, this case turns on whether there is evidence that the Veteran's cancer of the base of the right tongue was caused by his presumed herbicide exposure. Id. at 1042. On this point, there are competing VA and private opinions that are against and supportive of the claim. Evidence against the claim includes an October 2011 VA examiner's opinion. After a review of the claims file, to include a December 2008 VA examination report, the VA physician opined that the Veteran' squamous cell carcinoma of the tongue with metastases to the clavicle, L3 vertebral body, lung, and tonsil was not caused by or a result of military service. The VA physician reasoned that squamous cell carcinoma of the tongue was most highly correlated with the use of alcohol and tobacco. The VA physician noted that 80 percent of all cases were the result of alcohol or tobacco or the combination thereof and were dose dependent. Other known risk factors included viral infections (e.g., Epstein-Barr and human papilloma viruses), dietary factors, radiation and genetic susceptibility. The VA physician indicated that occupational exposures were also leading causes of head and neck cancers, such as asbestos; man-made mineral vitreous fibers; polycyclic air or manic hydrocarbon; textile and wood workers; manufactures of mustard gas and elastic and rubber products; leather and paint workers; automobile mechanics; construction and metal workers; farmers; and, bartenders (second-hand smoke). The VA physician related that betel nut chewing was also an independent risk factor for the development of squamous cell head and neck cancer, and that it appeared to be synergistic with tobacco and alcohol. Finally, the VA physician opined that according to medical studies "Poor oral hygiene impaired all disease has also been late the carcinoma of the oral cavity as has been in immunosuppression." (See October 2011 VA opinion). Evidence that is supportive of the claim includes a January 2012 opinion, prepared by the Veteran's treating oncologist, V. H., M. D. Dr. V. H. opined that he had been the Veteran's oncologist since May 2007. Dr. V. H. indicated that he disagreed with a January 2012 supplemental statement of the case, wherein VA had denied service connection for the issues on appeal in regards to Agent Orange exposure. Dr. V. H. opined that the Veteran's oropharyngeal cancer diagnosis of squamous cell cancer of the base of the tongue, posterior 2/3 with lung and bone involvement was more likely than not related to Agent Orange exposure. Dr. V. H. reasoned, and in response to the VA physician's October 2011 opinion, that the Veteran had never used tobacco--a risk factor, according to the October 2011 VA physician, for developing oropharyngeal cancers. In addition, Dr. V. H. indicated that the Veteran's occupational exposure for developing oropharyngeal cancer was doubtful. Dr. V. H. noted that during his lifetime, the Veteran was a truck driver of various material (laundry and linens, furniture/cardboard boxes and cement). (See Dr. V. H.'s January 2012 opinion). Dr. V. H.'s opinion is consistent with the other evidence of record reflecting that the Veteran was a non-smoker and cement truck driver. (See May 2005 report, prepared by Osceola Medical Center). While the May 2005 report reflects that the Veteran was exposed to occupational dust as a cement truck driver, it, along with the other evidence of record, does not show that the Veteran was exposed to occupational risk factors outlined by the October 2011 VA physician. Dr. V. H.'s positive opinion was based on a determination that the Veteran's exposure to Agent Orange during service in Vietnam was a major etiological factor in his cancer since while the most common factor in cancers of the head and neck, larynx and hypopharynx (including the tongue base) is tobacco smoking. The Veteran was a non-smoker and did not have the occupational exposure to hazardous elements outlined by the October 2011 VA physician. Dr V. H.'s opinion is the only one that considered the medical history specific to the Veteran, to include his known risk factors, in providing the opinion stated. For this reason, it is afforded more probative value than the October 2011 VA examiner's opinion that is against the claim. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Given the foregoing, the Board resolves all reasonable doubt by concluding that service connection for squamous cell carcinoma at the base of the right tongue (originally claimed as respiratory/lung cancer) was related to the Veteran's exposure to Agent Orange during active military service in the RVN. As to the claims of entitlement to service connection for bony metastases of the left clavicle and right L3 vertebral body, as secondary to the Veteran's squamous cell carcinoma of the right tongue base, the evidence shows that the Veteran was diagnosed with renal cell carcinoma with bony metastases of the left clavicle and right L3 vertebral body. Specifically, a July PET scan showed early bony metastases of the Veteran's tongue carcinoma to the left clavicle and right L3 vertebral body. (See July 2008 PET scan performed by St. Paul Radiology). In addition, VA and private clinicians in December 2008, October 2011 and January 2012 have concluded that the Veteran had a diagnosis of squamous cell cancer of the base of the tongue with bony metastases of right L3 vertebral body and left clavicle. (See December 2008 and October 2011 VA examination report and opinion, respectively, and January 2012 report, prepared by V. H., M. D.). As discussed above, the Board has granted entitlement to service connection for squamous cell carcinoma at the base of the tongue (originally claimed as respiratory/lung cancer). Accordingly, the Board concludes that it is at least as likely as not that the Veteran's bony metastases of the left clavicle and right L3 vertebral body (claimed as third vertebra in the back) were caused by or proximately due to his service-connected squamous cell carcinoma at the base of the tongue. Resolving doubt in favor of the Veteran, the claims of entitlement to service connection for bony metastases of the left clavicle and right L3 vertebral body on a secondary basis are granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for squamous cell carcinoma of the base of the tongue (originally claimed as lung/respiratory cancer) as due to Agent Orange exposure, on the basis of substitution, is granted. Entitlement to service connection for bony metastasis of the left clavicle as secondary to squamous cell carcinoma of the base of the tongue (originally claimed as lung/respiratory cancer), on the basis of substitution, is granted. Entitlement to service connection for bony metastasis of the right L3 vertebral body as secondary to squamous cell carcinoma of the base of the tongue (originally claimed as lung/respiratory cancer), on the basis of substitution, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs