Citation Nr: 1700243 Decision Date: 01/05/17 Archive Date: 01/13/17 DOCKET NO. 14-22 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for lung cancer, to include as a result of herbicide exposure. 2. Entitlement to service connection for bladder cancer, to include as a result of herbicide exposure. 3. Entitlement to service connection for oral cavity and oropharynx cancer, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to April 1968. This appeal is before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran did not have lung cancer at the time of his September 2012 claim for benefits and has not had it at any time since. 2. Neither bladder cancer nor oral cavity and oropharynx cancer was the result of in-service Agent Orange exposure or is related to service in any other way. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer, to include as a result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for bladder cancer, to include as a result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for oral cavity and oropharynx cancer, to include as a result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided in a March 2013 letter. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and identified private treatment records have been obtained. Also, the Veteran was provided a VA medical opinion in connection with his claimed lung cancer in April 2013, and Veterans Health Administrative (VHA) medical opinions in April and September 2016 in connection with his claimed bladder and oropharyngeal cancers. The opinions were adequate. Along with the other evidence of record, they provided sufficient information and sound bases for decisions on the Veteran's claims. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that in July and November 2016 statements, the Veteran's representative challenged the adequacy of these opinions. Such assertions are addressed in detail in the decision below. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection 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; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as cancer, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the record does not reflect, and the Veteran has not asserted, that any claimed cancer began in service or until decades after service. Rather, as reflected in a September 2012 statement, the Veteran asserts that he has cancer of the lung, bladder, and oropharynx as the result of in-service Agent Orange exposure during his service in Vietnam. Alternatively, as reflected in July and November 2016 statements from his representative, he asserts that oral cavity and oropharynx cancer is the result of asbestos exposure while performing his duties as a plumber in service. The Veteran's service records reflect that he had service in the Republic of Vietnam during the Vietnam Era; thus, he is presumed to have been exposed to Agent Orange. However, for the reasons discussed below, the Veteran's claims must be denied. A. Lung cancer The Veteran's service connection claim for lung cancer must be denied, as the disability has not been shown to exist. The record reflects that in January 2009, during workup of a mucoepidermoid cancer, a positron emission tomography (PET) scan demonstrated a highly suspicious mass in the right lower lobe of the lung, and it was noted that it should be necessary to do an open biopsy. A May 2009 private note reflects that bronchoscopy and endobronchial ultrasound (EBUS) of the Veteran's right lung to test for cancer revealed no abnormality or suggestion of cancer. A January 2016 treatment record, in noting the Veteran's medical history, reflects that the Veteran "had history of possible lung cancer." An April 2016 private treatment note, in listing past medical conditions, lists "Lung cancer (2007)." In June 2013, a VA physician determined that an extensive review of the Veteran's claims file reflected that he was evaluated for possible lung mass in 2009 but bronchoscopy and EBUS were negative and his pulmonologist, Dr. J., reported no suggestion of lung cancer. The VA physician stated that there was no further work up needed after this, and PET scans performed after this time never indicated this condition either. Given the above, the record reflects that, while the Veteran was tested for possible lung cancer due to a suspicious mass in the right lower lobe of the lung, testing for lung cancer was negative and he has never otherwise been determined to have lung cancer. While the January and April 2016 notes reflect medical histories of possible lung cancer or lung cancer, such notes appear to be based on subjective reported history and not any objective medical evidence or diagnoses; in this regard, in January 2016 he was noted to have "history of possible lung cancer," which in itself reflects no history of actual lung cancer, and the April 2016 note reflects lung cancer from 2007, two years prior to the finding of the Veteran's lung mass. Moreover, any probative value of such brief notations in reports of the Veteran's history seven years after his cancer testing is heavily outweighed by the actual contemporaneous cancer testing in 2009 and the April 2013 report of the VA examiner reflecting that the Veteran never actually had lung cancer. The Board acknowledges the Veteran's representative's assertions in a July 2016 brief that in a September 2012 VA treatment record it was noted by a VA physician's assistant in the Veteran's medical history that, "during PET scan [the Veteran] was found to have lung carcinoma which is believed to be encapsulated and has not been biopsied at this time," and that, "[d]ue to PET scan uptake it is believed this is a carcinoma, but once again this has not been biopsied." The Veteran was assessed at that time as having "suspected lung carcinoma, under surveillance without change times greater than 2 years." However, Board finds the June 2013 VA opinion to also be more probative than the September 2013 physician's assistant's report of medical history. The VA examining physician reviewed the entire record-including the January 2009 PET scan referenced in the September 2012 treatment record revealing possible cancer, and follow-up treatment including the May 2009 bronchoscopy and EBUS-rather than simply noting a previously recorded medical history. In doing so, the VA examiner determined that such records revealed no lung cancer; this determination is consistent with the evidence of record, including the May 2009 bronchoscopy and EBUS. Also, as indicated by the May 2013 VA examiner, there is no further objective evidence of lung cancer in the record. The Veteran has been provided the opportunity to submit a diagnosis or confirmation of lung cancer at any time during the appeal period, which would be presumed to be related to his in-service Agent Orange exposure, but neither he nor his representative has done so. In this regard, the Veteran has submitted numerous private treatment records, many of which regard his diagnosed bladder and oropharyngeal cancers, but none confirms any finding or diagnosis of lung cancer. Thus, the weight of the evidence reflects that the Veteran did not have lung cancer at the time of his September 2012 claim for benefits and has not had it at any time since. Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, service connection for lung cancer must be denied. B. Bladder cancer and oral cavity/oropharynx cancer Post-service medical records reflect bladder cancer, first detected in January 2007, and mucoepidermoid carcinoma, an oropharyngeal cancer, first detected in December 2008. As such diseases are not listed under 38 C.F.R. § 3.309(e), they are not presumed to be the result of the Veteran's in-service Agent Orange exposure. The record reflects conflicting medical opinions regarding whether the Veteran's diagnosed cancers might be related to his Agent Orange exposure. An April 4, 2013, private treatment record from Dr. T.J.R. notes the Veteran suffered from bladder and oral cancer. Dr. T.J.R. stated: "As dioxin is a known carcinogen, there is a good possibility that it may be the cause of his tumors." An April 7, 2013, private treatment record from Dr. J.U.C. notes the Veteran had been under his care for high grade mucoepidermoid carcinoma of the hard palate since December 2008. He noted, "I can tell you for certain however that this type of cancer is not mediated by tobacco or alcohol and it arises in minor salivary glands in the hard palate. It can be induced by radiation exposure and by inference it is possible that the carcinogenic toxicity of Agent Orange could have caused this tumor." A June 2014 private treatment record from Dr. T.J.R. states, "In my professional opinion, the types of cancer that this Veteran has been treated for, more likely than not, could have been caused from his exposure to dioxin." In April and September 2016 opinions, a VHA examiner, an oncologist, reviewed the record and opined that the Veteran's bladder cancer and oral cancer were highly unlikely to be related to his in-service Agent Orange exposure. Regarding his bladder cancer, the examiner determined that the Veteran's history of smoking, even though he had quit years before, was the main causative factor in the development of such cancer, based on the evidence published in the literature. The VHA examiner acknowledged the Institute of Medicine of the National Academies' Veterans and Agent Orange: Update 2014, p. 529 (2014) ("Agent Orange Update 2014"), which indicated that the available data and scientific literature, taken as a whole, are sufficiently consistent to conclude that there is limited or suggestive evidence for an association of bladder cancer with exposure to Agent Orange. However, the examiner determined that the fact that there was only "limited and suggestive," evidence to link Agent Orange and bladder cancer based on such medical research was itself an indication that it was highly unlikely that the Veteran's bladder cancer was related to his Agent Orange exposure. Regarding his oropharyngeal cancer, the examiner explained that extensive studies over the past 20 years had failed to make any reasonable causative association between Agent Orange and oropharyngeal cancer, and that the Agent Orange Update 2014 stated that there was inadequate and insufficient evidence to link Agent Orange to oropharyngeal cancer. Also, the examiner was asked to address the Veteran's assertions, as reflected in his representative's July 2016 brief, that he was exposed to asbestos almost daily while he was stationed at Plattsburgh Air Force Base, working in an old section of the base, where the pipes he worked on were wrapped in asbestos; in this regard, the Veteran's military specialty was as a Plumber. While acknowledging that possible causes of mucoepidermoid cancer included asbestos mining and plumbing industries work, among other things, the examiner opined that the Veteran's mucoepidermoid cancer was also highly unlikely related to in-service asbestos exposure. The examiner explained that, given the rarity of the cancer relative to the significant number of people working asbestos mining and plumbing industries, it was not speculation to say that the Veteran's mucoepidermoid cancer was highly unlikely to be related to in-service asbestos exposure. The Board finds the opinions of the VHA examiner to be of more probative value than the private medical opinions of record. Initially, all three private opinions are given in equivocal language of a "possible" relationship and that Agent Orange "could have been" the cause of the Veteran's current cancers. The June 2014 record from Dr. T.J.R. lacks any rationale or explanation. The only rationale or explanation for the April 2013 opinion of Dr. T.J.R. is that Agent Orange is a dioxin, and dioxins, generally, are known carcinogens; the only explanation for the opinion of Dr. J.U.C. is that, since the Veteran's mucoepidermoid cancer could be induced by radiation, it could be inferred that there is a possibility that the carcinogenic toxicity of Agent Orange could have caused it. The VHA examiner, an oncologist, reviewed the entire record and medical history of the Veteran's cancers, and acknowledged, considered, and discussed the authoritative medical literature regarding possible medical links between Agent Orange and bladder and oropharyngeal cancers, and how and why, based on such evidence, he determined that it was highly unlikely that either cancer was related to Agent Orange exposure. See Stefl v. Nicholson, 12 Vet. App. 120, 124 (2007). The examiner, in this regard, noted that extensive studies over the past 20 years had failed to make any reasonable causative association between Agent Orange and oropharyngeal cancer; and that he considered the language of "limited and suggestive" evidence of a link between bladder cancer and Agent Orange to imply a "highly unlikely" causative relationship in the Veteran's case based on such medical research. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Also, the VHA examiner identified the Veteran's history of smoking as the primary causative factor in the development of his bladder cancer. See Stefl, 12 Vet. App. at 124. The Board also finds the VHA examiner's explanation of how the Veteran's oropharyngeal cancer was not related in-service asbestos exposure, including during his duties as a plumber, based on such factors as the rarity of the cancer relative to the significant number of people working in asbestos mining and plumbing industries, to be highly probative. In this regard, there is no competent medical opinion linking the Veteran's oropharyngeal cancer to any such in-service asbestos exposure or his duties as a plumber in service. Also, the record in this case reflects no medical assessment that either cancer, each of which manifested approximately four decades after service, manifested in any unusual manor. See id. In this regard, again, the rationales for the opinions of Drs. T.J.R. and J.U.C. were simply that Agent Orange possibly might have caused the Veteran's cancers because Agent Orange is a known carcinogen. Again, the Board finds more persuasive the VHA examiner's opinion that, while certain toxins, including Agent Orange, are known to cause certain types of cancer, the particular toxin of Agent Orange was unlikely to have caused the particular diseases of bladder and oropharyngeal cancers. In any case, the Board emphasizes that the VHA examiner identified the Veteran's smoking history as his main causative factor in the development of bladder cancer. The Board notes the decision of the Court of Appeals for Veterans Claims of Polovick v. Shinseki, 23 Vet. App. 48, 54-55 (2009). However, in this case the Board is not assigning more probative weight to the VHA examiner's opinions than to the private opinions "solely because [they were] not consistent with the data assembled in the" Agent Orange Update 2014. Rather, as discussed above, the Board is assigning more probative weight to the VHA opinions for a number of reasons including their unequivocal nature, their analysis of the Veteran's particular cancers in light of the pertinent medical science, and the consideration of other etiological factors. In this regard, in Polovick, a private medical examiner provided a positive nexus opinion based on "her own review of those statistics [cited in an Agent Orange Update], but on her added opinion, as noted above, that the interval of time between Mr. Polovick's exposure to Agent Orange and the onset of his tumor was consistent with the period of time expected for brain tumor induction and growth, that toxins such as Agent Orange cause the genetic transformations that lead to tumors, and that Agent Orange was the only risk factor for brain tumor development to which Mr. Polovick had been exposed during his lifetime." See Id. Here, in contrast, again, the rationales for the opinions of Drs. T.J.R. and J.U.C. were simply that Agent Orange possibly might have caused the Veteran's cancers because Agent Orange was a known carcinogen. The Board notes arguments made by the Veteran's representative in July and November 2016 briefs. Initially, the representative argued that the VHA examiner's opinion that the Veteran's cancers were "highly unlikely" to be related to Agent Orange or in-service asbestos exposures was "ambiguous" on the question of whether such cancers were "at least as likely as not" related to such exposures. The Board finds the term "highly unlikely" to be in no way ambiguous regarding the VHA examiner's opinion on the likelihood of any such etiological relationship. Also, the representative asserted that the VHA's examiner's opinion that the finding in the Agent Orange Update 2014 that there was only "limited and suggestive" evidence to link Agent Orange and bladder cancer did not indicate a likelihood of a relationship between the two in the Veteran's case was inadequate given that the evidence linking several diseases presumed to be service connected in VA regulations was characterized similarly. However, the VHA examiner, an oncologist, considered this medical evidence and-along with the consideration of the Veteran's smoking history, which the examiner identified as the primary factor in his bladder cancer-made a medical determination that it was highly unlikely that the Veteran's bladder cancer was related to his Agent Orange exposure. The Veteran's representative also asserted that the VHA examiner did not consider medical records documenting ongoing treatment for bladder cancer. However, there is no indication of how such treatment records might be relevant in determining whether the Veteran's cancer was related to Agent Orange, and the Veteran's representative identified none. Furthermore, the Veteran's representative asserted that the VHA examiner was contradictory in identifying asbestos mining and plumbing industries as possible risk factors for mucoepidermoid cancer. However, again, while acknowledging that possible causes of mucoepidermoid cancer included asbestos mining and plumbing industries work, among other things, the examiner explained that, given the rarity of the cancer relative to the significant number of people working asbestos mining and plumbing industries, the Veteran's mucoepidermoid cancer was nonetheless highly unlikely to be related to in-service asbestos exposure. Finally, the Veteran's representative asserted that the VHA examiner's opinions were inadequate as the examiner did not provide an alternative etiology for the Veteran's mucoepidermoid cancer. However, the examiner was not asked to provide any such alternative etiology for such cancer, which the examiner described as rare, and any lack of an alternative etiology does not render the opinion inadequate. The question was the likelihood of whether such cancer was at least as likely as not related to the specific etiologies of in-service Agent Orange or asbestos exposures or in-service exposures to other such toxins to which the Veteran might have been exposed as a result of his service duties. The examiner answered such questions unequivocally, providing adequate explanations for such answers. Therefore, the preponderance of evidence weighs against a finding that either bladder cancer or oral cavity and oropharynx cancer was the result of the Veteran's in-service Agent Orange exposure or is related to service in any other way. Accordingly, service connection for bladder cancer and oral cavity and oropharynx cancer must be denied. ORDER Service connection for lung cancer, to include as a result of herbicide exposure, is denied. Service connection for bladder cancer, to include as a result of herbicide exposure, is denied. Service connection for oral cavity and oropharynx cancer, to include as a result of herbicide exposure, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs