Citation Nr: 21062774 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 12-15 837 DATE: October 12, 2021 ORDER Entitlement to service connection for squamous cell cancer of the throat, to include as due to herbicide agent exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that squamous cell cancer of the throat began during active service, or is otherwise related to an in-service injury or disease, to include presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for squamous cell cancer of the throat are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to June 1971, including service in the Republic of Vietnam. He was awarded a Combat Action Ribbon in recognition of his service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter for additional development in September 2016 and March 2018. The Board denied service connection in a February 2020 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a joint motion for remand (JMR), vacating and remanding the February 2020 decision for compliance with the JMR. In May 2021, the Board remanded the appeal for development which has been completed. 1. Entitlement to service connection for squamous cell cancer of the throat, to include as due to herbicide agent exposure, is denied. The Veteran contends that his squamous cell cancer of the throat is due to herbicide exposure during his service in the Republic of Vietnam. See February 2018 Informal Hearing Presentation. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, malignant tumors are chronic diseases. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Additionally, Veterans who during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam and those who served within the 12 nautical mile territorial sea of the "Republic of Vietnam". See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008); Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019); see also Blue Water Navy Vietnam Veterans Act of 2019 (presumption of exposure to herbicide agents extends to those veterans who served offshore of Vietnam if the location was not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting certain specified points of latitude and longitude). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined 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. See Notice, 68 Fed. Reg. 27630 -27641 (2003). Despite the Veteran's in-country service in Vietnam, squamous cell cancer of the throat is not an enumerated disease for which the presumption of service connection applies. Thus, service connection for squamous cell cancer of the throat is not warranted on the presumptive basis. See 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e). There is also no evidence of squamous cell cancer of the throat shown in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No examiner at the time, or since, has established that there was a finding sufficient to establish squamous cell cancer of the throat. In sum, characteristic manifestations sufficient to identify the disease (squamous cell cancer of the throat, i.e., malignant tumor) entity were not noted. Additionally, there is no assertion of continuity of or evidence of squamous cell cancer of the throat within one year of separation from service. Thus, service connection cannot be awarded on this presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. Nevertheless, a veteran is not precluded from establishing service connection on a direct basis. See Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). The evidence establishes the first and second elements for service connection. The record shows a diagnosis of oropharyngeal squamous cell carcinoma of throat, and the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam; the in-service element. Thus, the question for the Board is whether the diagnosed disability is at least as likely as not related to his service, to include herbicide agent exposure. Based on a review of the evidence, the Board concludes that service connection is not warranted on a direct basis. The Veteran's service treatment records do not show squamous cell cancer of the throat. STRs reveal one incident of acute tonsilitis without any follow-up treatments. A March 1970 service treatment record (STR) shows the Veteran was admitted for three days for acute tonsillitis with fever, chills, malaise, headache, sore throat, and diarrhea. The records do not show follow-up treatments for tonsillitis. A December 1970 STR shows the Veteran felt like he had a flu with chills, headache, and sore throat. The STRs are otherwise silent for any complaints of or treatment for a throat/tonsil disorder. His June 1971 separation examination does not reflect a chronic throat/tonsil disorder. The Veteran's post-service medical records are silent for throat carcinoma until 2009, which is 38 years after discharge from service. Notably, a March 2009 VA alcohol screening test noted the Veteran had a drink containing alcohol 2-4 times a month in the past year; he had 3-4 drinks containing alcohol on a typical day when he was drinking in the past year; he had 6 or more drinks on one occasion monthly in the past year. His March 2012 VA records noted similar consumption amounts. A May 2009 private record from Dr. B.L. noted the Veteran presented for soreness on the left side of the throat. It noted he may drink eight beers a week, but was not a heavy drinker. Dr. B.L. noted left tonsil mass for assessment, and that he is concerned about squamous cell carcinoma versus lymphoma. In a subsequent May 2009 record, Dr. B.L. noted left tonsillar squamous cell carcinoma for assessment, and that the Veteran will cut out the beer. A May 2009 private CT exam noted an impression of left parapharyngeal mass compatible with tonsillar carcinoma. In a subsequent May 2009 record, Dr. B.L. referred the Veteran to Dr. P.M. in radiation oncology, Dr. L.B. in hematology oncology, and Dr. C.G. in head and neck surgery. He noted he has spoken to Dr. H.P., the Veteran's primary care physician, and made him aware of everything that was going on. He noted that Dr. H.P. expressed concerns regarding the Veteran's alcohol consumption and will be working with him regarding it. The Veteran underwent a tonsillar pharyngectomy in June 2009. The Veteran is not competent to link his current squamous cell cancer to a period of service. The Board will thus review the relevant medical nexus evidence. In a September 2009 opinion, Dr. P.M. stated that the Veteran had developed squamous cell cancer of his tonsil. He noted that squamous cell cancer of the throat was usually associated with patients who smoked; however, the Veteran was a nonsmoker and had never chewed tobacco or had any other significant tobacco exposure. Dr. P.M. concluded that "I would certainly consider a head and neck cancer in a nonsmoker who was in Vietnam to be certainly at risk for an association between Agent Orange and the development of his cancer." To the extent these statements represents evidence in favor of the claim, the Board is affording them little probative value because they are speculative at best and conjectural or speculative opinions which suggest no more than some remote possibility of an etiological relationship are insufficient to support a grant of service connection. See 38 C.F.R. § 3.102 (2007). See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship)). Accordingly, this opinion is afforded little probative value. The Veteran also underwent a VA examination in October 2016. However, the Board previously found it speculative in nature and also that it did not provide the degree of certainly required for persuasive nexus evidence in this case. In an August 2019 VA addendum opinion, an examiner determined that based on the latest update from the National Academies of Sciences, Engineering, and Medicine, there was inadequate or insufficient evidence to determine whether there is an association between exposure to chemicals of interest (COIs) and oral, oropharyngeal, or nasopharynx cancers. The examiner concluded that the Veteran's squamous cell carcinoma was less likely than not related to service including exposure to Agent Orange. However, the consensus of the parties (i.e., the Veteran, through counsel, and VA) in the January 2021 JMR was that the August 2019 addendum opinion was inadequate. Specifically, the examiner's rationale for a negative nexus opinion was essentially because squamous cell cancer of the throat because the National Academy of Sciences (NAS) does not deem the evidence is substantive enough to add the disease to the list of diseases deemed associated with presumed exposure to herbicide agents. The Board therefore remanded the appeal in May 2021 for a new nexus opinion. Pursuant to the May 2021 remand, an addendum opinion was received in June 2021. The examiner opined that it is less likely as not that the Veteran's squamous cell carcinoma of the throat/tonsil is causally related to service, including conceded exposure to herbicide agents in Vietnam. The examiner explained that while acute tonsillitis with related symptoms was noted in STRs, it was an acute infection that resolved with no residuals. The examiner also explained that the risk factors most frequently associated with head and neck cancer include smoking, alcohol consumption, HPV infection, and Epstein-Barr virus (EBV) infection. He stated that other factors include poor oral hygiene and periodontal disease, which has been linked with carcinoma of the oral cavity. The examiner also explained that alcohol consumption independently increases the risk of cancer in the upper aerodigestive tract. He noted that the risk of developing head and neck cancer due to alcohol appeared to be dose dependent, where one study reported a five to sixfold increased risk for head and neck cancer with alcohol intake greater than 50 grams/day versus less than 10 grams/day (one drink contains approximately 12 grams of alcohol). He noted that there may also be an interaction of genetic susceptibility and alcohol intake on the risk of developing head and neck cancer with genetic polymorphisms of alcohol dehydrogenase (ADH) and aldehyde dehydrogenase (ALDH). The examiner indicated that, in the case of the Veteran, alcohol consumption was the risk factor as a letter from Dr. B.L. noted "Dr. [H.]P[.] expressed concern regarding patient's alcohol consumption ... he could develop del[i]rium trem[e]ns." The examiner stated that it was once noted after surgery that the Veteran drank 8 beers a week. He stated that the Veteran perhaps drank more before the surgery as his private doctor noted concerns about delirium tremens. He also commented that the Veteran is/was an electrician and may have been exposed to a variety of occupational carcinogens. Regarding Dr. P.M's 2009 opinion, the examiner noted that Dr. P.M. did not state herbicide exposure is proximately related to Veteran's cancer. The examiner added that the opinion contradicts the concern for the Veteran's alcohol consumption, which is a well-known and well-recognized risk factor. The June 2021 VA examiner's opinion that it is less likely as not that the Veteran's squamous cell carcinoma of the throat/tonsil is causally related to service is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the prior nexus opinions, they are outweighed by the June 2021 VA opinion, which is found most persuasive. Dr. P.M. opined that a nonsmoker who was in Vietnam to be certainly at risk for an association between Agent Orange and the development of head and neck cancer. However, his opinion is afforded no weight as he did not provide a rationale. The October 2016 VA examiner opined that if the tonsil pathology was HPV negative, and the Veteran denies tobacco and alcohol history, squamous cell carcinoma of the oropharynx due to herbicide exposure cannot be excluded. This opinion is afforded limited probative value, as the record does show alcohol history. Indeed, review of the post-service medical records show Veteran had a history of excessive alcohol consumption. Moreover, the Veteran's pre- and post-surgery alcohol screening tests were positive for alcohol consumption. Consequently, the Board gives more probative weight to the June 2021 VA examiner's opinion. In the September 2021 Written Brief Presentation, the Veteran's representative raised a number of contentions. The representative asserted the "Board has seen and accepted the science before on herbicides and squamous cell carcinoma." The representative provided a prior Board decision involving a different veteran; however, a prior Board decision is not binding unless the decision specifically addressed this particular Veteran's case. 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The representative also provided links to medical articles; however, they discuss about skin cancers, not throat/tonsil cancer which is the type that the Veteran is diagnosed with. While medical treatise evidence can provide important support when combined with an opinion of a medical professional, the representative did not submit a medical opinion along with this treatise evidence. Mattern v. West, 12 Vet. App. 222, 228 (1999). The representative also asserted the military issued uniforms and blankets impregnated with dichloro-diphenyl-trichloroethane (DDT) and sprayed pesticides during the time that the Veteran was in military service. However, the representative does not provide any other evidence to show that this particular Veteran was directly exposed to DDT or pesticides, or any competent medical evidence or informed medical opinion on how any alleged DDT or pesticide exposure caused the Veteran's tonsil cancer that developed decades after discharge from service. The representative next argued that tonsil cancer is a respiratory cancer and also a lymph cancer. However, VA regulations specifically note that a respiratory cancer is a cancer of the lung, bronchus, larynx, or trachea. 38 C.F.R. § 3.309(e). The representative argued that the June 2021 VA examiner's use of "grams" for alcohol measurement is incorrect. He disputed what he termed "beer math" employed by the VA examiner. The representative also argued that eight beers per week is far below the Mayo Clinic's "red zone." He provided a link to a Mayo Clinic internal article, which identifies "drinking alcohol" as one of the three risk factors for tonsil cancer but also indicates use of alcohol 'in moderation' for healthy adults, means up to two drinks a day for men. The Board finds no reason to discount the examiner's opinion that in the case of this particular Veteran, with whom whose relevant medical history he was familiar, his alcohol consumption (which the examiner indicates is a well-known and well-recognized risk factor) was a risk factor in developing his form of cancer. The Board acknowledges the Veteran's belief that his squamous cell cancer of the throat was the result of his exposure to herbicide agents in Vietnam. However, the issue is medically complex, as it requires interpretation of complicated diagnostic medical testing and understanding of internal physiological processes not visible by the natural senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is outside his competence because the record does not show he has the medical training or credentials to make such a determination. Consequently, the Board gives probative weight to the competent medical evidence of record. Since the competent and probative evidence of record fails to indicate that the Veteran's squamous cell cancer of the throat had onset in, or is otherwise related to service including presumed exposure to herbicide agents, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.