Citation Nr: 1728131 Decision Date: 07/19/17 Archive Date: 07/27/17 DOCKET NO. 14-37 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for squamous cell carcinoma of the tongue. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in October 2014 but withdrew that request in October 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's squamous cell carcinoma of the tongue was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service, including exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma of the tongue are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016); 82 Fed. Reg 4173 (Jan 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim being decided herein, VA has met all statutory and regulatory notice and duty to assist provisions, and it has not been contended otherwise, except as will be indicated below. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). It appears that he is not satisfied with the contents and conclusions of the December 2013 VA examination. Satisfactory explanations for why no further development is required by VA will be explained below, in response to remarks made by the Veteran mentioned below. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an 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). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Malignant tumors are listed as chronic diseases. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). During the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 13, 2017). This final rule establishes presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Fourteen diseases were placed into the category of limited/suggestive evidence of an association. Among them is esophageal cancer. Squamous cell carcinoma of the tongue is not among the diseases presumptively linked to contaminated water exposure, and is not one of the diseases that was placed into the category of limited/suggestive evidence of an association. The absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis. Service personnel records show that the Veteran had service at Camp Lejeune, from approximately July 1961 to April 1962. Service treatment records show no reports of tongue problems, and on service examination in June 1963, the Veteran's mouth was normal and no defects or diagnoses were noted. June 2004 private medical records show that the Veteran reported developing irritation with swallowing in February 2004. This was initially treated conservatively, but when it did not resolve, the Veteran sought additional help. Subsequently, a biopsy was obtained in May 2004, revealing squamous cell carcinoma from the right base of the tongue region. The Veteran subsequently underwent radiation therapy, and his December 2012 and September 2013 reports that as a result, he has no saliva or taste and every meal is a problem have been accepted as plausible evidence of current related disability. A VA medical opinion was obtained in December 2013, from a member of the Subject Matter Expert Panel, Camp Lejeune Contaminated Water Project. The Veteran was noted to contend that his tongue cancer laryngeal neoplasms were secondary to exposure to contaminated water at Camp Lejeune. The examiner noted that notes from a private medical facility show that the Veteran was diagnosed with squamous cell carcinoma of the tongue in 2004. He had smoked cigarettes for 10 years before quitting in 1965. He smoked 4-5 cigars per week up until his diagnosis. The private medical records state that he had stopped drinking in 2004, and that prior to that, he binged on weekends, drinking 10 beers per day. His father reportedly died from throat cancer. The examiner indicated that roughly half of tongue cancers are related to human papilloma virus (HPV). The examiner indicated that the Veteran had not had testing for this, and that most patients are unaware of their HPV status. In addition to this 50 percent of cases, the Veteran had smoked cigars and drank, which increased his risk of developing oral cancer. The examiner also indicated that there is no clear relationship between oral cancer and solvents. Given the Veteran's two well-established risk factors and a 50 percent chance that his tumor is HPV positive as well, the examiner concluded that it is less likely than not that the solvent exposure at Camp Lejeune (which has been estimated to be low) was related to his developing tongue cancer. The examiner made reference to Up to Date and references as medical evidence supporting his conclusion. Based on the evidence, the Board concludes that service connection is not warranted for squamous cell carcinoma of the Veteran's tongue. The preponderance of the evidence indicates that this was not manifest in service or until many years post-service. It was not shown in the service treatment records, and when it was diagnosed in 2004, there was only a months-long history of symptoms. There is no evidence that it was manifest until years post-service. The preponderance of the evidence also indicates that his tongue cancer is unrelated to any incident of service. The Veteran has alleged that it was due to contaminated water at Camp Lejeune. However, it is not on the list of diseases presumptive to exposure to the contaminated water there, or even on the list of diseases for which there is limited/suggested evidence of an association, and the preponderance of the evidence, including the detailed report of the expert who prepared the December 2013 VA examination report, providing numerous detailed medical reasons for that opinion, indicates that it was not due to such exposure to contaminated water. Those reasons include his two well established risk factors for tongue cancer, the 50 percent chance that his tumor is HPV positive, and the estimated low solvent exposure at Camp Lejeune. There is not even limited/suggestive evidence of an association between the solvents, moreover, and squamous cell cancer of the tongue. In support of his claim, in December 2012, the Veteran reported that five of his friends joined the Marine Corps and that they were all stationed at Camp Lejeune, and that they all developed cancer. In January 2014, the Veteran noted that cancer cells can lay dormant for years, and reported that he is not a drinker or smoker, so he attributes his cancer to the contaminated water at Camp Lejeune. The Veteran also reported in January 2014 that he did not think that anyone can prove for sure why he had cancer in his tongue, and someone else in their esophagus (which, as noted earlier, there is limited evidence of an association with the contaminated water at Camp Lejeune). The Veteran's lay statements, in and of themselves, regarding the etiology of his cancer are not competent evidence, as he lacks the requisite training to identify the cause of an internal process like cancer, the diagnosis of which requires clinical findings and medical expertise not demonstrated by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran also stated in January 2014 that you cannot prove that the contaminated water exposure at Camp Lejeune was not the cause of his cancer. However, it is his burden to prove, at least as likely as not, that his tongue cancer disability is due to service. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). He has not met this burden. In September 2013, the Veteran alluded to having had cancer of the throat, rather than of the tongue. In October 2014, the Veteran reported that he had claimed squamous cell carcinoma of the tongue, but that the proper word is the oropharynx. The medical evidence specifically and clearly indicates that he had squamous cell carcinoma of the right base of his tongue, which is an oral cancer. A June 2004 private cancer institute clinical record states that a biopsy obtained in May 2004 showed that he had cancer of the base of his tongue, and this is what the VA examiner opined about in December 2013. The Veteran also stated in October 2014 that a hospital report (from March 2006) is wrong in stating that he drank 10 beers a day. That report states that prior to 2004, he had weekend binging with about 10 beers in a day. The Veteran stated in October 2014 that he drank occasionally on his weekends off, and that he was only off 1 weekend a month. However, the VA examiner in December 2013 indicated that drinking increases the risk, and so even if we accept the Veteran's statement that the hospital report is wrong, that would not appear to make a difference, since it is clear that he drank before his tongue cancer was diagnosed. Furthermore, the VA examiner in December 2013 indicated that there is actually even a study that found that light drinking is associated with the risk of oropharyngeal cancer, and cited it in the VA examination report. The Veteran also reported in October 2014 that his father died of natural causes, as opposed to the throat cancer listed in the December 2013 VA examination report. The VA examination report makes it clear, however, that his probable HPV status and the large impact of this, as well as his cigar smoking and drinking, are what likely caused his tongue cancer. The cause of his father's death was not included in the VA examiner's assessment of risk factors (smoking and drinking were the two well-established risk factors he identified in his opinion paragraph), and so its report does not reduce the probative value of the opinion. The Veteran's opinions as to the cause of his tongue cancer are not competent, as he is a layperson and medical expertise is required on this complex medical matter. Jandreau. His notation to the effect that since VA allows service connection for esophageal cancer, and contaminated water must pass the tongue first to get to the esophagus, is not probative evidence on the matter of his tongue cancer causation. Esophageal cancer, the Board would note, is not presumptive to contaminated water exposure, and each case is decided on its own merits. There is limited/suggestive evidence of an association with esophageal cancer and the contaminated water at Camp Lejeune. However, that evidence is merely limited/suggestive, and for esophageal cancer, and the preponderance of the evidence here indicates that the Veteran's tongue cancer, which is not esophageal cancer, was not caused by the contaminated water at Camp Lejeune. The Board regrets that its decision cannot be favorable to the Veteran, and would like to thank him for his four years of honorable service. ORDER Service connection for squamous cell carcinoma of the tongue is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs