Citation Nr: 1618096	
Decision Date: 05/05/16    Archive Date: 05/13/16

DOCKET NO.  12-30 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for squamous cell carcinoma of the nasal passages, status post-craniofacial resection and post-operative chemoradiation, with right facial neuralgia and chronic rhinitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from July 1966 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for squamous cell carcinoma of the nasal passages, specifically the septum and middle turbinate with extension to skull base.

After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision.  The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  In this regard, while the Veteran's claim was originally characterized as squamous cell carcinoma of the nasal passages, specifically the septum and middle turbinate with extension to skull base, he had no currently diagnosed squamous cell carcinoma of the nasal passages at the time he filed the present claim or at any time during the appeal period. However, the record contains many diagnoses for residuals of the treatments for the squamous cell carcinoma of the nasal passages. Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized this claim as reflected on the title page.

The record includes evidence containing diagnoses of right facial neuralgia and chronic rhinitis. The VA examiner and the Veteran's treating physicians opined on the etiology of each of these disabilities. However, neither of these issues was specifically raised by the Veteran or the RO. The Board finds that it has jurisdiction over these issues, as they are residuals of the treatment for the claimed disability of squamous cell carcinoma of the nasal passages that has been perfected to the Board.  Furthermore, each of these issues is being fully granted, so any procedural error related to the Board's jurisdiction over these issues is harmless. See Percy v. Shinseki, 23 Vet. App. 37 (2009); 38 U.S.C.A. § 20.101(d) (2015).

The issues of entitlement to service connection for an acquired psychiatric disorder and chonic sinusitis, both secondary to squamous cell carcinoma of the nasal passages, status post-craniofacial resection and post-operative chemoradiation, have been raised by the record in a January 2009 medical treatment record and the January 2011 VA examination, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).


FINDING OF FACT

The Veteran's squamous cell carcinoma of the nasal passages is attributable to herbicide exposure in Vietnam; residual disabilities include right facial neuralgia and chronic rhinitis.


CONCLUSION OF LAW

The criteria for service connection for squamous cell carcinoma of the nasal passages, status post-craniofacial resection and post-operative chemoradiation, with right facial neuralgia and chronic rhinitis, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Laws and Regulations - Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was not incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. 
§ 3.102 (2015).


Service Connection for Squamous Cell Carcinoma of the Nasal Passages, 

The Veteran contends that his squamous cell carcinoma of the nasal passages was caused by his exposure to herbicides while serving in Vietnam. He was diagnosed with squamous cell carcinoma of the nasal passages in February 2006.  

A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  The Veteran served in Vietnam from November 1968 to July 1970.  Therefore, the Board finds that the Veteran was exposed to herbicides.

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 considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  However, presumptive service connection is not warranted in this case because the Veteran's carcinoma is not associated with herbicides under VA regulations. Therefore, the Board must consider whether the Veteran's carcinoma was directly caused by exposure to herbicides. Combee v. Brown, 34 F.3d 1039   (Fed. Cir. 1994).

In January 2016, the Veteran's treating private physician submitted an opinion as to the etiology of his squamous cell carcinoma of the nasal passages.  He stated that the Veteran's squamous cell carcinoma of the nasal passages is at least as likely as not caused by exposure to Agent Orange during his service in Vietnam.  He noted that the Veteran has no other risk factors that may have precipitated the condition.  In support of this opinion, the physician explained that dioxin is known to be a component of the herbicide known as Agent Orange.  The physician noted that the National Toxicology Program lists a dioxin as "known to be a human carcinogen," or cancer-causing.  He cited several studies and articles in support of his opinion.

The Board finds the January 2016 opinion from the Veteran's treating private physician to be adequate and highly probative.  As the Veteran's treating physician, he is aware of the Veteran's medical treatment history and exposure to herbicides in Vietnam.  He provided an opinion as to the nature and etiology of the Veteran's squamous cell carcinoma of the nasal passages, and provided a detailed rationale for his opinion.

The Veteran has also been diagnosed with right facial neuralgia, as indicated in a January 2009 medical treatment note. The January 2011 VA examiner stated that the Veteran's right facial neuralgia was a complication or residual of his treatment for squamous cell carcinoma of the nasal passages.  There is no contrary opinion of record.  Therefore, the Veteran's right facial neuralgia is a residual of his service-connected squamous cell carcinoma of the nasal passages.  

The Veteran has been diagnosed with chronic rhinitis, as indicated in the January 2011 VA examination report. The January 2011 VA examiner relayed that the Veteran's medical treatment records note that he was diagnosed with chronic rhinitis, secondary to radiation (treatment), in October 2009. There is no contrary opinion of record.  Therefore, the Veteran's chronic rhinitis is related to his service-connected squamous cell carcinoma of the nasal passages.  

The Veteran's squamous cell carcinoma of the nasal passages meets all three elements for service connection, as there was an in-service exposure to herbicides given his in-country service, there is a diagnosis of squamous cell carcinoma of the nasal passages with residual disability, and there is a nexus between the diagnosis and in-service exposure to herbicides. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for squamous cell carcinoma of the nasal passages, status post-craniofacial resection and post-operative chemoradiation, with right facial neuralgia and chronic rhinitis, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102




ORDER

Entitlement to service connection for squamous cell carcinoma of the nasal passages, status post-craniofacial resection and post-operative chemoradiation, with right facial neuralgia and chronic rhinitis is granted.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs