Citation Nr: 1803017 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 09-00 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for throat cancer, diagnosed as squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1969. This matter is on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction over the appeal is currently with the RO in Detroit, Michigan. The claim was previously before the Board in February 2011, January 2012, and April 2013 when it was remanded for additional development. Thereafter, in a January 2014 decision, the Board denied entitlement service connection for throat cancer, diagnosed as metastatic squamous cell carcinoma to the left jugulodigastric lymph node, to include as due to asbestos exposure. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 Memorandum Decision, the Court set aside the January 2014 Board decision and remanded the matter for readjudication. Subsequently, in January 2016 the issue was again remanded for additional development. In September 2017, the Board referred this matter for a medical expert opinion from a VA specialist employed by the VA's Veterans Health Administration (VHA). A medical expert opinion was obtained in November 2017. Thereafter, the Veteran and his representative were provided with a copy of the medical expert opinion and afforded 60 days to respond. The issue was previously listed as entitlement to service connection for throat cancer, diagnosed as metastatic squamous cell carcinoma to the left jugulodigastric lymph node, to include as due to asbestos exposure. However, based upon the diagnosis identified by the VA medical expert, the issue has been amended as listed above. FINDINGS OF FACT 1. The Veteran's exposure to asbestos while in service is conceded. 2. The evidence is at least in equipoise that the Veteran's squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s) was incurred in service. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s) have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. The M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (b). The Veteran is claiming entitlement to service connection for what he described as "throat cancer." It is contended that this disorder resulted from exposure to asbestos while serving on a number of different naval vessels during the Vietnam Era. The November 1965 pre-induction examination report was clear for any significant abnormalities in his mouth, throat, lungs and chest. However, the Veteran did report a history of ear, nose and throat trouble, as well as a history of a chronic cough and cold, shortness of breath, and pain and pressure in his chest. Clinical records dated from January 1966 to November 1968 reflect treatment for various respiratory problems, to include a sore throat, chronic cough and chest pain, throughout his years in service. However, the clinical evaluation of the Veteran's mouth, throat, lungs and chest was shown to be normal at his October 1969 separation examination. The Veteran's post-service private treatment records reflect that he discovered a large mass on the left side of his neck in July 2000, which was later biopsied and diagnosed as metastatic squamous cell carcinoma. In another treatment note dated in August 2000 it was reported that the primary cancer was left base of the tongue. The Board has previously conceded, based upon the Veteran's service aboard various vessels during his period of active duty, that he was exposed to asbestos during his active duty. The Veteran was afforded VA examinations in June 2013 and VA medical opinions were obtained in August 2013. In July 2013 the examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's separation examination was silent for any findings of cancer, the sore throat treated in 1968 was acute and transitory in nature without any documented chronic sequelae. Post military documentation within one year of discharge did not document cancer of the tongue. Lastly, medical literature did not list asbestos exposure as a risk factor in causing squamous cell carcinoma of the tongue. In August 2013 a dental examiner rendered the opinion that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the claims file was reviewed and there was no record of throat during active duty. The same dental examiner later in August 2013 rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was error in the prior medical opinion. The examiner reported that there was no history or record of oral cancer (squamous cell carcinoma) of the throat during active duty 1966 to 1969. The Veteran was seen by a private provider and was diagnosed with squamous cell carcinoma. There were no other records during active duty, only the private sector stated by the Veteran. Review of medical literature revealed no information on asbestos causing squamous cell carcinoma of the throat or the tongue. However, in the June 2015 Memorandum Decision the Court found that the VA medical opinions were inadequate. The Court noted that in its prior decision, the Board cited M21-1MR, Part IV, Subpart ii, Chapter 2, Section C(9)(d) indicating that the latent period between first exposure to asbestos and development of disease due to exposure ranges from 10 to 45 or more years. The Court subsequently agreed with the Veteran that the Board had failed to adequately explain the relevance of its observation that the first indication of throat cancer was approximately 31 years after the Veteran left active duty in light of the latency period for the development of disease due to exposure to asbestos. The Court further noted that the Board had previously acknowledged that inhalation of asbestos fibers can result in cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, citing the VA adjudication manual. The Court cited medical literature in stating that the "pharynx," or "throat," has three parts. The part above the level of the soft palate is the nasopharynx, which communicates with the auditory tube. The lower portion consists of two sections: the oropharynx, which lies between the soft palate and the upper edge of the epiglottis, and the laryngopharynx, which lies below the upper edge of the epiglottis and opens into the larynx and esophagus." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1427 (32d ed. 2012). Relevant to this appeal, the oropharynx includes the "[b]ack one-third of the tongue." Oropharyngeal Cancer Treatment, NIH NATIONAL CANCER INSTITUTE, http://www.cancer.gov/types/head-and-neck/patient/oropharyngeal-treatment-pdq#section/all (last visited June 18, 2015). The Court found the prior examiners unexplained statements about the medical literature appeared to be in conflict with VA's policy statement on asbestos. Thereafter, a VA medical expert opinion was obtained in November 2017. The examiner observed that on the Veteran's separation examination there were no abnormalities noted. In August 2000, the Veteran was diagnosed with squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s). The examiner reported that the Veteran had a history of smoking one to two packs per day of cigarettes from approximately 1955 to 2005. It was reported that according to a recent systematic review of the medical literature between 2000 and 2016 on the association of asbestos and head and neck cancer, current evidence was lacking to support a correlation between asbestos exposure and head and neck cancer (laryngeal cancer) even though asbestos is considered hazardous and carcinogenic. The examiner continued to repeat that the Veteran had an extensive smoking history and smoking that was well known to predispose patients to head and neck cancers. The examiner concluded that there was a less than 10 percent chance that the Veteran's tongue cancer is related to asbestos exposure. In December 2017 the Veteran's representative argued that it is undisputed that the Veteran has a current throat cancer diagnosis, citing the July 2013 VA examination diagnosis of squamous cell carcinoma of the tongue metastatic to jugulodigastric lymph node. The representative cites literature to indicate that the base of the tongue is part of the oropharynx and states that this is situated within the middle section of the pharynx. The representative argued that the evidence of record suggested that the Veteran was exhibiting in-service symptoms linked to prolonged exposure to asbestos fibers. The representative stated that the scientific evidence suggests a medical nexus exists between asbestos and pharyngeal cancers. Finally, the representative concluded that the Veteran's in-service asbestos exposure exponentially increased his risk for developing cancer of throat. In the alternative, the Veteran's representative argued that the VA expert opinion, dated in November 2017, was inadequate because the examiner began his rationale by stating that the Veteran's separation examination showed "no abnormalities," the examiner failed to discuss important in-service health complaints or VA guidance, which posits that the inhalation of asbestos fibers can cause pharyngeal cancer, and the examiner focused his scientific research on laryngeal cancer when the Veteran's cancer was discovered in the oropharynx. Entitlement to service connection for squamous cell carcinoma of the tongue metastatic to jugulodigastric lymph node is warranted. It has been conceded that the Veteran was exposed to asbestos while in active service. VA policy, as put forth in the VA adjudication manual, indicates that cancer of the larynx and cancer of the pharynx are asbestos related diseases/abnormalities. As noted by the Court in the Memorandum Decision, the back one third of the tongue is part of the pharynx. The Board acknowledges that a VA medical expert has rendered a negative nexus opinion. The expert noted that the Veteran had a significant history of smoking and that smoking that was well known to predispose patients to head and neck cancers. Further examiner noted that a review of the medical literature did not support a correlation between asbestos exposure and head and neck cancer (laryngeal cancer) even though asbestos is considered hazardous and carcinogenic. That medical expert also noted that no pertinent abnormalities were noted at the Veteran's separation from service, but did not address the identified latency period for the development of asbestos-related diseases. The VA medical expert did not adequately explain the relative impact of the Veteran's smoking versus his exposure to asbestos in service in the subsequent development of the Veteran's cancer disability. The expert did not exclude exposure to asbestos as a cause of the Veteran's current cancer disability. As the Veteran has been conceded to have been exposed to asbestos in service, has been diagnosed with primary cancer of the base of the left tongue, the back of the tongue is considered part of the pharynx, VA has indicated that cancers of the pharynx can be caused by asbestos, and there is insufficient evidence regarding the relative impact of the Veteran's smoking versus exposure to asbestos exposure in the development of the Veteran's current cancer disability, the Board finds that the evidence is at least in equipoise and service connection for throat cancer, diagnosed as squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s), to include as due to asbestos exposure, is granted. ORDER Service connection for throat cancer, diagnosed as squamous cell carcinoma of the base of the left tongue with metastases to the left jugulodigastric lymph node(s), to include as due to asbestos exposure, is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs