Citation Nr: 1605329 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 12-26 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the right tonsil with metastasis to the right cervical lymph nodes, to include as due to exposure to herbicides. 2. Entitlement to service connection for renal insufficiency, to include as secondary to squamous cell carcinoma of the right tonsil. ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from July 1970 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The claim is now under the jurisdiction of the RO in Atlanta, Georgia. The Veteran cancelled his request for a Board hearing scheduled for August 2015. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2015). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have herbicide exposure. 2. Tonsillar or lymph node cancer was not manifested during service or within one year thereafter, and is not causally or etiologically related to service. 3. Renal insufficiency was not present in service or for many years thereafter, and is not causally or etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. Tonsillar or lymph node cancer was not incurred in or aggravated by service, and may not be presumed related to service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). 2. Renal insufficiency was not incurred or aggravated during active duty and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in January 2010. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA and private treatment records. The Board acknowledges that the Veteran has not been afforded a VA examination for his claimed squamous cell carcinoma of the right tonsil with metastasis to the right cervical lymph nodes or renal insufficiency. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran contends that he developed tonsillar cancer, as a result of being exposed to herbicides while serving on active duty in Vietnam. As discussed below, the Veteran served on active duty in Vietnam and therefore he is presumed to have been exposed to herbicides in service, however; VA regulations do not provide for presumptive service connection for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses). Furthermore, there is no competent evidence of record indicating a link between the Veteran's tonsillar cancer and his active service or herbicide exposure therein. He contends that his renal insufficiency is secondary to his treatment for tonsillar cancer. However, as discussed below, there is no competent evidence indicating a link between the Veteran's renal insufficiency and his treatment for tonsillar cancer or his active service. An examination for tonsillar cancer or renal insufficiency, therefore, not required. In sum, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as a malignant tumor, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); 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. Squamous Cell Carcinoma of the Right Tonsil The Veteran contends that his current squamous cell carcinoma of the right tonsil diagnosed in 2008 is related to his military service, to include his exposure to Agent Orange during active duty in Vietnam. Because the Veteran served in Vietnam, his exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Initially, it is important to note that VA regulations do not provide for presumptive service connection for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses). See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32395 -407 (June 12, 2007); Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332-247 (December 27, 2010); see also 38 C.F.R. § 3.309(e) (2015). The Veteran could, nonetheless establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records contain no findings of tonsillar or other oral cancers, and the Veteran has reported no in-service symptoms or treatment. Private treatment records show that the Veteran has been treated for squamous cell carcinoma of the right tonsil with metastasis to the right cervical lymph nodes. Treatment records from Dr K.W. show that he underwent several CT scans related to his tonsillar cancer. Results from a February 2008 test initially revealed the presence of masses in the neck and right parapharyngeal space. March 2008 biopsy results from Dr. K.W. showed invasive poorly differentiated squamous cell carcinoma. Medical records from Dr. M.S. show that he underwent an esophagogastroduodenoscopy with percutaneous endoscopic gastroscopy tube placement in March 2008. He also began radiation therapy in March 2008. Progress notes from September 2008 revealed significant improvement in his condition following the completion of therapy. At that time, there was no evidence of recurrent or metastatic disease. August 2009 private treatment reports from Dr A.H. note a history of tonsillar carcinoma, in remission. CT scans of the neck showed a slight decrease in size of a mildly prominent lymph node in the right jugulodigastric area. It also showed stable size of less than 1 cm. of another mildly prominent lymph node. There was no evidence of a recurrent mass of the tonsils. In this case, the Board finds that the Veteran was not diagnosed with tonsillar cancer until February or March 2008, over 15 years after service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems weighs against the claim. Furthermore, continuity of symptomatology has not been established, either through the competent evidence of record or through the Veteran's statements. In this regard, while the Veteran contends that his tonsillar cancer is related to his active service it does not appear that he contends that he has continued symptomatology since service. Finally, there is no competent medical evidence or opinions which relate the Veteran's tonsillar cancer to his service or events therein. The Board has taken the contention of the Veteran that his tonsillar cancer was caused by his service with great care. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed tonsillar cancer. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of tonsillar cancer, 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 also notes that the Veteran's tonsillar cancer may not be presumed incurred during active military service, as this chronic disease was not manifested to a degree of 10 percent disabling within one year after the Veteran's active military service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim for service connection. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014). Renal Insufficiency The Veteran does not contend and the evidence does not show that his currently diagnosed acute renal failure is directly related to his active military service. Rather, he contends that his renal failure is secondary to treatment for his squamous cell carcinoma of the right tonsil, which he believes is directly related to service. Service treatment records are negative for any evidence of any kidney disorder or renal insufficiency, and the post-service medical evidence of record does not show that the Veteran's currently diagnosed acute renal failure or increased creatine levels are related to his active military service or a service-connected disability. Private treatment records show that the Veteran currently suffers from stage three chronic kidney disease and that his creatine level remains elevated at 15. Private treatment records also show that in May 2008, he was noted to have increased creatine with acute renal failure of unknown origin. Post-service VA treatment records show that the Veteran was first diagnosed with kidney disease and the resultant renal failure, many years after his discharge from service. Moreover, the evidence of record does not contain medical evidence that otherwise supports a finding that the currently diagnosed renal failure is related to the Veteran's active military service. Accordingly, the Board finds that service connection is not warranted on a direct basis. Further, the Veteran has not presented evidence of continuity of symptomatology since military service. As noted above, there is no evidence of renal failure until many years after service discharge, and the Veteran does not dispute this fact. With no evidence of renal failure during service, no evidence of post-service continuity of symptomatology, and no evidence of a nexus between present disability and post-service symptomatology, there is no support for a grant of service connection on this basis. Finally, because service connection for squamous cell carcinoma of the right tonsil has not been established, a threshold legal requirement for establishing secondary service connection for renal insufficiency is not met. Accordingly, the aspect of the claim of service connection for renal insufficiency as secondary to squamous cell carcinoma of the right tonsil must be denied because it lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons noted above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for squamous cell carcinoma of the right tonsil with metastasis to the right cervical lymph nodes is denied. Service connection for renal insufficiency is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs