Citation Nr: 20006166 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-16 092 DATE: January 24, 2020 ORDER Entitlement to service connection for hypopharynx cancer, claimed as associated with radiation, herbicide exposure and asbestos, is denied. FINDING OF FACT Symptoms of the Veteran’s hypopharynx cancer first manifested many years after separation from active duty service and this condition is not causally or etiologically related to his active service, to include in-service exposure to herbicide agents, radiation, or asbestos. CONCLUSION OF LAW The criteria for service connection for hypopharynx cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to December 1970, to include verified service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that jurisdiction currently rests with the St. Petersburg, Florida RO. The Veteran presented testimony on this issue at a June 2019 videoconference hearing held at his local RO before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Entitlement to service connection for hypopharynx cancer, to include as associated with radiation, herbicide exposure and asbestos, is denied. The Veteran contends that he is entitled to service connection for hypopharynx cancer as a result of his active duty service. Specifically, he asserts that, “it was the Agent Orange, the radiation, the asbestos or a combination of all three that brought on this cancer”. See e.g. June 2019 Board Hearing Transcript. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, it must be shown that there was: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307 (a)(6). A Veteran who served in qualifying locations during defined periods, to include Vietnam, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iii). If the Veteran is presumed to have been exposed to herbicide agents, the Veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309 (e). This presumption is specifically limited to those diseases listed. Id. VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Notwithstanding the presumption outlined above, service connection for a disability claimed as due to herbicide agent exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. In addition, service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See e.g. Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancer, including pharynx cancer, that are presumptively service-connected when they occur in “radiation-exposed veterans.” 38 U.S.C. § 1112 (c)(1), (2)(S); 38 C.F.R. § 3.309 (d)(1), (2)(xix). The term “radiation-exposed veteran” means either a veteran who while serving on active duty or during a period of training participated in a radiation-risk activity. 38 C.F.R. § 3.309 (d)(3)(i). A “radiation-risk activity” is defined as (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) participation in the occupation of Hiroshima or Nagasaki, Japan, between August 6, 1945, and July 1, 1946; (3) internment as a prisoner of war in Japan which resulted in an opportunity for exposure to ionizing radiation; (4) service in which the veteran was, as part of his/her official duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a known gaseous diffusion plant; or (5) service before January 1, 1974, on Amchitka Island, resulting in exposure to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 38 C.F.R. § 3.309 (d)(3)(ii). The Veteran, however, is not considered a “radiation-exposed veteran” under § 3.309. Second, “radiogenic diseases” may be service connected, provided that certain conditions are met under 38 C.F.R. § 3.311. A “radiogenic disease” means a disease that may be induced by ionizing radiation and has become manifest five years or more after exposure. 38 C.F.R. § 3.311 (b)(2), (5). Hypopharynx cancer is a radiogenic disease under 38 C.F.R. § 3.311 (b)(2)(x). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In claims involving radiation exposure, other than atmospheric nuclear weapons testing or Hiroshima and Nagasaki occupation, the Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies and all available records concerning the veteran’s exposure to radiation, normally including the Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service medical records, and other records which may contain information pertaining to the veteran’s radiation dose in service. Third, as stated in regard to claimed herbicide agent exposure, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to presumptions. See Combee, 34 F.3d 1039, 1044. Turning to the evidence of record, in this case, the Veteran’s Compensation and Pension examination confirms that he has been diagnosed with hypopharynx cancer. The Veteran had documented service in the Republic of Vietnam and his personnel records reflect that he was exposed to radiation as a radiological controls technician. He has asserted that he was exposed to asbestos due to his work as a scuba diver aboard ships on active duty. In-service herbicide exposure, radiation exposure and asbestos exposure have all previously been conceded by VA. See March 2016 Statement of the Case. Therefore, the question remaining for consideration is whether the Veteran’s hypopharynx cancer is, or may be presumed to be, etiologically related to his active service. In this case, the Board concludes that the most competent, probative evidence of record is not indicative of a nexus between the Veteran’s hypopharynx cancer and his active duty service. The Board notes as an initial mater that the Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to herbicide agents. However, presumptive service connection is not available under 38 C.F.R. § 3.309 (e) for the Veteran’s hypopharynx cancer as hypopharynx cancer is not included on the list of conditions deemed presumptive. Accordingly, the Board finds that service connection for the Veteran’s hypopharynx cancer cannot be granted under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309. Despite this, service connection for the Veteran’s hypopharynx cancer may still be established on the basis of direct causation. Combee, 34 F.3d 1039. The Veteran’s service treatment records do not show symptomology reflective of, a diagnosis of, or treatment for, hypopharynx cancer. The Veteran presented with an inflamed throat in September 1970, but the impression was “common cold”. No abnormalities or symptomology involving the tongue or throat were noted on his December 1970 report of medical history in anticipation of separation. Post-service, there are no complaints of or treatment for hypopharynx cancer or related symptomology for several decades. Private medical records indicate that in October 2008, almost thirty-eight years after his departure from active duty, the Veteran presented with a history of, “[m]ass and swelling in neck since June – woke up this morning with mouth and nose full of blood”. The examiner found that there, “appear[ed] to be a mass at the base of the tongue on the right extending into the hypopharynx and displacing the hypopharyngeal air shadow to the left”. A biopsy the same month confirmed that the Veteran’s condition was a nonkeratinizing squamous cell carcinoma. The Board acknowledges that the Veteran received treatment for his claimed hypopharynx cancer. In regard to a nexus, there are several opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on the etiology of hypopharynx cancer. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the probative value of that physician’s statement. See e.g. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The Veteran was afforded a VA examination in November 2011. The examiner noted a diagnosis of squamous cell carcinoma at the base of the tongue extending to the hypopharyngeal region with several metastatic lymph nodes on the right. The Veteran did not have any current residuals. After reviewing the available evidence, the examiner opined that the claimed condition was less likely than not incurred in or caused by military service. As rationale, the examiner noted that the Veteran had several non-military-related risk factors for the kind of cancer he had been diagnosed with such as the fact that he, “worked in construction of bridges and ports for 40 years” with “exposure to wood dust, paint fumes and to certain chemicals”. The “Veteran also smoked 2 packs per day by history and medical literature shows that tobacco use is the most important risk factor for head and neck cancers including cancers of the larynx and hypopharynx). Any kind of tobacco raises the risk: cigarettes, cigars, pipes and any form of spit tobacco. [The] Veteran also drinks 4-6 beers daily and medical literature states that drinking alcohol also increases the risk of these cancers. Studies show that persons who use both tobacco and alcohol have the highest risk of all, up to 100 times the risk of people who do not smoke or drink alcohol”. Further, there was no diagnosis of asbestosis. In April 2012, an opinion authored by a private treatment provider was added to the record. This examiner opined that, “[i]t is possible that his cancer could have possibly been related to reported Agent Orange exposure in Vietnam”. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to decide a claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). Given the inconclusive nature of this opinion, it lacks probative value. In March 2013, an additional opinion was authored by a private treatment provider, Dr. C. B., who stated that, “it is my opinion considering every possible sound medical etiology/principle, to at least the 50 percent level of probability that his current SCC hypopharnyx and secondary problems are due to his experiences with [Agent Orange] during military service”. Dr. B. noted as supporting rationale that his, “opinion is consistent with [the other private treatment provider’s] opinion”, that the Veteran, “entered the service fit for duty without any doctor-diagnosed illnesses”, and that he had exposure to Agent Orange during service. Further, he asserted that Agent Orange is a known carcinogen, and “[t]he hypopharnyx and cancer is not well recorded in the agent orange literature but the neighboring regions are, thus to give the veteran the benefits of the doubt, I have done a meta analysis of the literature concerning cancer in the region as it relates to AO”. This examiner did not provide a medical explanation for why the “neighboring regions” of the hypopharynx would be considered analogous with the hypopharynx in the contemplation of a claim for service connection for cancer of the hypopharynx. Thus, this examiner has drawn a conclusion, but there is insufficient supportive rationale and, significantly, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The examiner’s only rationale for examining the neighboring regions was “to give the Veteran the benefits of the doubt”, which is a legal, not a medical, standard and therefore offers no medical support. This examiner also noted the November 2011 VA examination which he “discounted” for reasons he believed to be erroneous. Significantly, while medical personnel are utilized to provide medical examinations and opinions, they cannot make legal conclusions, such as the adequacy of other medical opinions of record or the legal standard that should be relied upon in deciding a case. Instead, analyzing the medical evidence of record and assigning probative value is a legal determination solely within the Board’s adjudicative authority as finder of fact. See e.g. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Further, portions of this opinion appear to be internally contradictory. For example, the examiner stated that “it is impossible to know what additional risk was added to this patient’s baseline alcohol and tobacco risk [by Agent Orange]” and yet also opined that “it is likely that Agent Orange added additional risk to this patient[’s] baseline risk”. Weighing the competing medical opinions, the Board is more persuaded by the VA opinion of record. The VA examiner considered the Veteran’s contentions, the claims file, and clinical medical evidence before providing a negative opinion that contains sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The VA examiner’s opinion is therefore afforded great probative weight, in contrast with the opinions authored with by the private medical examiners which lack probative value for the reasons outlined above. Regarding radiation exposure, although the Veteran has a presumptive radiogenic disease under 38 C.F.R. § 3.309 (d), presumptive service connection under those previsions is not warranted in this case as the Veteran is not shown to have any onsite participation in a test involving the atmospheric detonation of a nuclear device or on the grounds of a known gaseous diffusion plant during the periods noted by the regulation, or for the six months following any of those noted periods, nor any noted service at Hiroshima or Nagasaki or as a prisoner of war during August 6, 1945 through July 1, 1946. Thus, the Veteran is not shown to have participated in a “radiation-risk activity” as defined by those presumptive regulations during his period of military service such that he is a “radiation-exposed veteran” and may be presumptively service connected on that basis in this case. However, as the Veteran has a radiogenic disease for purposes of 38 C.F.R. § 3.311, the additional developmental provisions are applicable in this case. The Board has also determined that those provisions have been properly completed in this case. In pursuing that development, in May 2012, the AOJ referred the case to the VA Under Secretary for Health for preparation of a dose estimate and an opinion as to “whether it is likely, unlikely, or as likely as not” that the Veteran’s hypopharynx cancer resulted from exposure to radiation in service. Later in May 2012, a response was provided by a medical examiner noting review of the Veteran’s report of exposure in the form of a memorandum opinion from Dr. P.C., the Director of the Post-9/11 Environmental Health Program (designee for opinion by the Undersecretary of Health), who determined that it is “unlikely that the Veteran’s throat cancer can be attributed to radiation exposure while in military service”. It was initially noted that, “[t]he Naval Dosimetry Center states the veteran was exposed to ionizing radiation of: SDE WB – 00.000 rem, DDE-Photon – 00.207 rem and DDE-Neutron – 00.000 rem”. It was stated that, “[t]he Health Physicals Society, in their position statement PS010-1, Radiation Risk in Perspective, revised in August of 2004, states that ‘in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual does of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.’ The position statement goes on to say that ‘there is substantial and convincing scientific evidence for health risks following high-dose exposure. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.’” The conclusion was formed based on the fact that the amount of the Veteran’s radiation exposure falls within the latter category. In June 2012, an advisory opinion was provided in the form of a Memorandum from the Director of the Compensation Service. Following a review of the evidence, including the other Memorandum, it was determined that “it is our opinion that there is no reasonable possibility that the Veteran’s throat cancer resulted from radiation in service”. The Board affords great weight to the May 2012 examiner’s opinion because it was based on a review of the relevant records, to include the Record of Occupational Exposure to Ionizing Radiation (DD 1141), the dosage amounts confirmed by the Naval Dosimetry Center and a review of relevant medical literature. The examiner provided excerpts from that literature that support his conclusion that it is unlikely that the Veteran’s hypopharynx cancer was caused by his in-service radiation exposure. He explained that the Veteran’s total lifetime radiation exposure, even in consideration of the Veteran’s history, did not exceed 100 mSv (10 rem) above natural background noise. This conclusion is consistent with the record, as the Radiation Exposure History shows an additional ionizing radiation exposure of only 00.217 rem, far less than 10 rem, which is the level at which the Health Physics Society determined statistically significant differences become evident. See Prejean v. West, 13 Vet. App. 444 (2000). The evidence of record indicates that the amount of ionizing radiation that the Veteran was exposed to would therefore have no observable effect or have a nonexistent effect on the Veteran. The Veteran and his representative have not presented any evidence which refutes any of the above opinions, and therefore, the Board finds the medical opinion outlined above to be the most probative evidence of record in regard to the Veteran’s assertion of radiological exposure. The Board also notes that no medical opinion has been presented lining the cancer to any asbestos exposure during service and the VA examiner in 2011 indicated that there was no diagnosis of asbestosis. Altogether, the most probative evidence of record does not show that the Veteran’s hypopharynx cancer was caused by his active service, to include his exposure to herbicide agents, radiation and asbestos. The evidence indicates that it is less likely than not that the Veteran’s hypopharynx cancer occurred in-service or is due to any service-related incident. The Board acknowledges that the Veteran is competent to report the throat and tongue symptomology he has experienced as this requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not demonstrated that he possesses the medical knowledge, education, and experience to render an opinion as to the medically complex question of the etiology of hypopharynx cancer. See 38 C.F.R. § 3.159 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After reviewing the medical and lay evidence of record, the Board has determined that service connection is not warranted for hypopharynx cancer on any basis asserted by the Veteran or raised by the record. The evidence weighs against finding that the Veteran’s in-service exposure to herbicide agents, radiation, or asbestos is etiologically responsible for his hypopharynx cancer for the reasons outlined in detail above. It has also not been argued, and the medical evidence does not show, that this condition manifested to any degree or was diagnosed during the Veteran’s active duty service. It is instead uncontroverted that the Veteran’s hypopharynx cancer did not manifest until approximately 38 years following separation from active duty. By his own assertions, the Veteran’s hypopharynx cancer was discovered in October 2008 after he had, “sore throats constantly off and on for [the prior] six months”. See June 2019 Board Hearing Transcript. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, presumptive service connection as a chronic disease under 38 C.F.R. § 3.309 is also not applicable in this case. See 38 C.F.R. § 3.307, 3.309 (a). In conclusion, the most probative evidence of record does not show an etiological relationship between this post-service condition and an in-service injury, event or illness. Accordingly, the Board concludes that service connection for hypopharynx cancer is not warranted. The Board has considered the benefit of the doubt doctrine; however, as the evidence weighs against the Veteran’s claim, it is not applicable. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.