Citation Nr: 1806668 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-25 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for squamous cell carcinoma of the pharynx, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from September 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2016, the Board remanded the case for further development. In July 2017 the Board referred the matter to the Veterans Health Administration (VHA) for an advisory opinion. The advisory opinion, including an addendum, has been obtained and is included in the claims folder for review. It is noted that the Veteran, along with his representative, were given the opportunity to provide any comments with respect to the opinion. In the Medical Opinion Response Form received January 10, 2018, the Veteran indicated that he had no additional materials to submit. He requested that the Board hold his case open for the remainder of the 60-day response period. The remainder of the 60-day response period, which would have been until January 14, 2018; has expired. FINDING OF FACT The competent and probative evidence of record demonstrates that squamous cell carcinoma of the pharynx did not have onset in service or for many years thereafter, and is not otherwise related to active service, to include exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma of the pharynx have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). A standard letter in May 2011 satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c). The Veteran's service treatment records, service personnel records, and post-service VA treatment records have been obtained. The Veteran was provided a VA medical examination in December 2016, and a VA E.N.T. physician reviewed the claims file and provided an opinion dated in September 2017. The examination and opinion, taken together, and with the other evidence of record, provide a sufficient basis for deciding the claim. Thus, VA's duty to assist has been met. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1116, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an 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. § 1116; 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the certain diseases, including respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). Evidence The Veteran asserts that he has squamous cell carcinoma of the pharynx that is related to exposure to Agent Orange during his service in the Republic of Vietnam. An April 2011 VA surgery note indicated that the Veteran had recently undergone a CT scan that showed a suspicious lesion in the pharynx. Physical examination showed extensive lesion involving the palate, tonsils, larynx, and supraglottic larynx on the right extending into the tongue less than 50 percent. The assessment was advanced squamous cell carcinoma of the pharynx on the right involving the supraglottic larynx and tongue with regional adenopathy. On a VA otolaryngology attending note dated in September 2011, a physician noted, "I continued to believe that this is primarily not just a hypopharyngeal lesion but also a laryngeal lesion as it involved the medial wall of the piriform sinus abutting the endolarynx. The patient has had a rejection from the board on Agent Orange I believe this should be reviewed." In September 2016, the Veteran's representative submitted argument essentially stating the exposure to Agent Orange in some Vietnam veterans may result in depressed immune system function rendering them susceptible to viral infection that is related to squamous cell carcinoma in the oral cavity and tonsils. The representative's argument includes a citation to a U.S. National Library of Medicine (NLM) medical study. A VA staff physician examined the Veteran in December 2016 and provided an opinion that the Veteran's squamous cell carcinoma of the pharynx was less likely than not incurred in or caused by an in-service injury, event, or illness, as there are multiple factors increasing the risk of squamous cell carcinoma of the pharynx such as tobacco use (maximum of 2 ppd for 39 years), alcohol use, diet lacking in fruits and vegetables and possibly exposure to Agent Orange. She explained that it is not possible to determine the precise percentage each risk factor plays in the development of cancer of the pharynx. In response to questions posed by the Board in its November 2016 remand, she also stated that "the larynx is anatomically part of the hypopharynx;" that the "squamous cell carcinoma of the larynx in this veteran is primary and did not develop as a result of metastasis of a cancer from other parts of the body." In response to the contention that exposure to herbicide agents caused the Veteran to have a depressed immune system, the examiner indicated that there are multiple factors contributing to a depressed immune system such as mature age (the Veteran was diagnosed with SCC at 68) as well as lack of exercise, sleep and proper nutrition. Medical literature does not include Agent Orange in the causation of a depressed immune system. The Board obtained a VHA medical opinion from a VA board-certified E.N.T. surgeon in September 2017. The E.N.T. surgeon noted that following an April 2011 CT scan the Veteran was diagnosed with advanced squamous cell carcinoma of the pharynx on the right, involving the supraglottic larynx and tongue with regional lymphadenopathy. The surgeon opined that the Veteran's squamous cell carcinoma was less likely than not incurred in or caused by an inservice injury like an Agent Orange exposure. The surgeon also opined that the Veteran had squamous cell carcinoma of the larynx, which was not a metastasis of another cancer. He opined that it is carcinoma of the tongue, contiguous hypopharynx extended down to the right supraglottic area and involves the medial wall of the piriform sinus abutting the endolarynx. With respect to the Veteran's representative's citation of the NLM medical study and the assertion to exposure to Agent Orange may result in depressed immune system functions causing viral infection that is related to squamous cell carcinoma in the oral cavity and tonsils, the surgeon opined that there are multiple factors increasing the risk of squamous cell carcinoma of the pharynx in this Veteran such as tobacco use (maximum 2 ppd for thirty nine years) and alcohol use. The surgeon indicated that he had reviewed the American Cancer Society's study on Agent Orange and cancer, as well as the Veterans and Agent Orange: Updates 2014 (and published 2016). He stated that after analyzing this data, the Veteran's throat malignancy aligns with the group "with inadequate/insufficient evidence" [to determine whether an association exists] with Agent Orange. The surgeon further noted that while larynx cancers have limited/suggestive evidence of an association with Agent Orange, in this case, this is not a pure larynx cancer. The Veteran had a large posterior pharyngeal cancer extending from base of tongue and soft palate through hypopharynx into the supraglottic larynx on the right side. This is anatomically contiguous extension of the tumor from his throat to his larynx- it is not spread of the disease from the larynx upwards to the hypopharynx and back of tongue. The surgeon concluded by stating that in view of the data, his opinion is that this Veteran's squamous cell carcinoma of the throat was less likely than not caused by Agent Orange exposure. In October 2017 the E.N.T. surgeon provided an addendum to his opinion. He clarified that the Veteran's cancer had not metastasized from another site to his larynx, and was not a metastatic cancer. He explained that 'metastasis' by definition comes from a distant source either by lymphatic or blood spread- so as it is not a metastatic cancer, it has to be a primary cancer of the larynx in this case. He also opined that the Veteran's cancer was a large primary carcinoma of the posterior tongue, spreading down the contiguous hypopharynx, extending to the supraglottic area involving the medial wall of the pyriform sinus abutting the endolarynx. He again clarified that the Veteran had a large posterior tongue cancer which spread down to his hypopharynx and right supraglottic larynx. All this was an extensive primary cancer- the larynx cancer is not a metastatic cancer. Analysis The Board finds that the preponderance of the evidence weighs against the Veteran's claim. Squamous cell carcinoma of the pharynx is not among the cancers or diseases presumed to be associated with herbicide exposure, which are enumerated in section 3.309(e). The VHA opinion is competent and persuasive evidence that the Veteran's cancer was squamous cell carcinoma of the pharynx and not a respiratory cancer. While the surgeon noted that the Veteran had cancer of the larynx that had not metastasized from another part of the body, he made it clear that the cancer was "a large primary carcinoma of the posterior tongue" that then spread down into the larynx. Also, in both opinions, the surgeon specifically described the squamous cell carcinoma as a "throat cancer," "throat malignancy," "tongue cancer," and "cancer of the posterior tongue." Further, in the September 2017 opinion, he clearly stated that the Veteran's carcinoma was an anatomically contiguous extension of the tumor from his throat to his larynx- it was not a spread of the disease from the larynx upwards to the hypopharynx and back of tongue (emphasis added). In his addendum opinion, he stated this was a "large posterior tongue cancer which spread down to his hypopharynx and right supraglottic larynx." The salient point is not whether the cancer metastasized, but rather the nature and origin of the cancer; here, the evidence persuasively demonstrates that the Veteran's cancer was a squamous cell carcinoma that originated in the pharynx, as opposed to the larynx; thus it was not a respiratory cancer of the larynx. The September 2011 VA otolaryngology attending note is consistent with this interpretation. The Veteran, as a lay person, does not have the medical background or expertise to competently determine whether his cancer is properly diagnosed as a respiratory cancer of the larynx rather than squamous cell carcinoma of the pharynx. See Jandreau v. Nicholson, 492 F. 3d at 1376-77. The Board finds that the Veteran's lay contention is outweighed by the findings of the doctors who diagnosed squamous cell carcinoma of the pharynx, as they have the medical expertise to render such a diagnosis based on the clinical findings made on examination. Accordingly, the Board finds that the Veteran does not have a respiratory cancer of the larynx and that his squamous cell carcinoma is not among the respiratory cancers or diseases presumed to be caused by herbicide exposure set forth in 38 C.F.R. § 3.309 (e). Thus, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309(e). While service connection is not warranted on a presumptive basis under section 3.309(e), such a finding does not preclude the Veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran's representative has argued that exposure to Agent Orange in some Vietnam veterans may result in depressed immune system function rendering them susceptible to viral infection that is related to squamous cell carcinoma in the oral cavity and tonsils. The representative's argument includes a citation to a U.S. National Library of Medicine (NLM) medical study. The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'". Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). In any case, both the December 2016 VA physician and the September 2017 VHA E.N.T. surgeon addressed this evidence and concluded that the Veteran had more significant risk factors for the development of squamous cell carcinoma of the pharynx, most specifically his smoking history and use of alcohol. The Board finds that those opinions, which were focused on the Veteran's specific personal history, are more probative than the generic information cited by the representative. The Board further notes that the Secretary has found based on reports submitted by NAS dated most recently in 2006 and 2008, as well as previous NAS reports, that a positive association has not been shown between herbicide exposure and cancers of the pharynx. See Notice, 75 Fed. Reg. at 81333; see also Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents (Notice), 75 Fed. Reg. 32540, 32541 (June 8, 2010). These reports reflect evaluations by NAS of relevant scientific studies addressing whether there are statistically significant correlations between herbicide exposure and the development of various diseases. The Board finds the Secretary's Notice, which is based on the confirmed integrity of the NAS findings and a comprehensive review of the scientific evidence, to be highly probative evidence weighing against a relationship between the Veteran's squamous cell carcinoma of the pharynx and exposure to Agent Orange. Moreover, the E.N.T. surgeon indicated that he had reviewed the Agent Orange Updates and that after analyzing this data, the Veteran's throat malignancy aligns with the group "with inadequate/insufficient evidence" [to determine whether an association exists] with Agent Orange. Accordingly, the Board finds that the preponderance of the evidence weighs against a relationship between the Veteran's squamous cell carcinoma and his presumed exposure to herbicide agents during active service. Furthermore, the Board finds that squamous cell carcinoma is not otherwise directly related to service. In this regard, the Veteran has not argued that his squamous cell carcinoma was somehow related to service apart from his presumed herbicide agent exposure- nor is he competent to so. The service treatment records and examination reports are negative for diagnoses of squamous cell carcinoma or other cancers. The Veteran's squamous cell carcinoma did not manifest until 2011, over forty years after he separated from active service. The Veteran has not argued that his squamous cell carcinoma manifested during active service or soon thereafter. Thus, the long period of time that passed between his period of active service and the onset of squamous cell carcinoma precludes presumptive service connection for a malignant tumor under 38 C.F.R. § 3.309(a) or through application of the chronicity and continuity principles. See 38 C.F.R. § 3.303(b). In a January 2018 brief, the American Legion stated that: The Board and the medical reviewer limited consideration to "Agent Orange". The regulation governing presumptive service connection specifically states "herbicide agent"; which includes among others, Agents Blue and White; i.e., comprised of chemical compounds differing from Agent Orange. 38 C.F.R. § 3.309(e). Simply because a veteran claims "Agent Orange" doesn't relieve VA of the responsibility of considering the effects of the other known "herbicide agents". For this reason The American Legion asserts the Board's request and received opinion to be flawed and we enjoin the Board to revisit this whole endeavor accordingly. As noted above, the Veteran has been presumed to have been exposed to herbicide agents. However, his type of cancer is not among respiratory cancers or diseases presumed to be caused by herbicide agent exposure as set forth in 38 C.F.R. § 3.309 (e). The representative has not submitted any competent evidence that the Veteran was exposed to any specific herbicide agent other than Agent Orange, nor has he provided any evidence that the analysis above would in any way be different if another herbicide were to be identified in the Veteran's case. As the most probative evidence of record weighs against the claim, the Board concludes that the claim of entitlement to service connection for squamous cell carcinoma must be denied. The doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Service connection for squamous cell carcinoma of the pharynx, to include as due to exposure to herbicide agents, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs