Citation Nr: 21006868 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-12 198A DATE: February 5, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to an herbicide agent, is denied. Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to an herbicide agent, lead and/or asbestos, is denied. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran’s colon cancer did not originate in service or for many years thereafter, is not related to any incidents during active service, including in-service herbicide agent exposure or asbestos exposure, and cannot be presumptively related to an in-service herbicide agent exposure. 2. The probative evidence of record demonstrates that the Veteran’s squamous cell carcinoma of the right tonsil did not originate in service or for many years thereafter, is not related to any incidents during active service, including in-service herbicide agent exposure, lead exposure or asbestos exposure, and cannot be presumptively related to an in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for colon cancer, to include as due to exposure to an herbicide agent, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to an herbicide agent, lead and/or asbestos, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1955 to November 1968. His service awards include a Purple Heart. A February 2019 Board of Veterans’ Appeals (Board) decision denied service connection for colon cancer and squamous cell carcinoma of the right tonsil. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). By a February 2020 Order, the Court vacated and remanded these issues to the Board pursuant to the terms of a January 2020 Joint Motion for Remand. The Board remanded the case for additional development in July 2020. Service Connection 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). If a Veteran was exposed to an “herbicide agent,” such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be presumptively service-connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). The Veteran’s service personnel records reflect his Naval ship disembarked in Da Nang, Vietnam in July 1965. Therefore, the evidence of record demonstrates that the Veteran served in the Republic of Vietnam during the Vietnam War era and is presumed to have been exposed to an herbicide agent during that service; however, squamous cell carcinoma of the right tonsil and colon cancer are not included in the list of diseases which are deemed associated with herbicide exposure, under current VA law. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Thus, the presumptive regulations for diseases associated with herbicide exposure do not apply in this case. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The claims will therefore be analyzed on the basis of direct service connection. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for colon cancer and squamous cell carcinoma of the right tonsil The Veteran contends that his squamous cell carcinoma of the right tonsil is related to his active service, including exposure to an herbicide agent, lead and/or asbestos, and that his colon cancer is related to active service, including exposure to an herbicide agent. While the Veteran has current diagnoses of squamous cell carcinoma of the right tonsil and colon cancer, the preponderance of the evidence weighs against finding that these disabilities began during service or are otherwise related to an in-service injury, event, or disease, including exposure to herbicides. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.307, and 3.309. The Veteran has been diagnosed with squamous cell carcinoma of the right tonsil and colon cancer per private medical records from March 2014 to February 2017. Service treatment records (STRs) do not reflect any complaints, findings or treatment for squamous cell carcinoma of the right tonsil or colon cancer. A March 1965 STR reflects findings of an infection of the left tonsil, diagnosed as acute tonsillitis. Subsequent STRs do not reflect further treatment or residuals of this condition. In a November 1966 Report of Medical History, the Veteran reported he was in excellent health and that he had no history of ear, nose or throat trouble, no history of stomach, liver or intestinal trouble, no history of pelvic or rectal disease and no history of tumor, growth, cyst or cancer. The November 1968 separation examination revealed normal findings of the mouth, throat, rectum and anus. In a January 1970 Report of Medical History, approximately one year and one month after his separation from active service, the Veteran reported having no history of ear, nose or throat trouble, no history of stomach, liver or intestinal trouble, no history of pelvic or rectal disease and no history of tumor, growth, cyst or cancer. In addition, a January 1970 periodic examination, approximately one year and one month after his separation from active service, revealed normal findings of the mouth, throat, rectum and anus. STRs and service personnel records are also absent of any findings, treatment or diagnoses related to exposure to lead or asbestos. Regarding the Veteran's claim that he was exposed to asbestos, there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, VA guidance provides that Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion, and a diagnosed disability that has been associated with in-service asbestos exposure. In this case, the Board observes the Veteran’s military occupational specialty (MOS) was that of a Field Medical Service Technician and thus, did not have a military skill associated with exposure to asbestos. Although the Veteran reported having worked on a U.S. Naval vessel which contained asbestos during his active service, his squamous cell carcinoma of the right tonsil and colon cancer are not disabilities that have been associated with asbestos exposure. Moreover, the record fails to indicate any credible basis that his squamous cell carcinoma of the right tonsil and colon cancer are related to any alleged in-service asbestos exposure. Despite the above evidence of presumed herbicide exposure in service and even considering the Veteran’s reports of exposure to asbestos and lead, the Board observes that there is no credible and probative lay or medical evidence indicating the Veteran’s current squamous cell carcinoma of the right tonsil and colon cancer are related to any in-service incident or event. At no time has any medical provider related his squamous cell carcinoma of the right tonsil or colon cancer to his active service, including his claimed exposure to an herbicide agent, lead or asbestos. In a February 2017 letter, a private physician who specialized in oncology provided a summary of the Veteran’s treatment and noted his in-service reported exposures to lead, Agent Orange and asbestos, and found that causal links had been established for Agent Orange in producing several hematologic malignant processes and solid tumors. While this letter indicated there was a link generally between exposure to types of Agent Orange and several disabilities, including tumors, the physician did not provide any opinion relating the Veteran’s current squamous cell carcinoma or colon cancer to any of his reported exposures. The May 2017 and August 2017 VA examiner’s opinions were found to be inadequate by the Board in the November 2017 remand and the July 2018 VA examiner’s opinion was found to be inadequate in the January 2020 Joint Motion for Remand. Accordingly, this decision will focus on the findings of the August 2020 VA opinion. In the August 2020 opinion, a VA physician concluded that it was less likely than not that the Veteran’s squamous cell carcinoma of the right tonsil or colon cancer were incurred in or caused by an in-service injury, event or illness. The examiner then broke down his opinions into several sections, first finding that squamous cell cancer of the tonsil was less likely than not incurred in active service. She explained that the Veteran initially presented with squamous cell carcinoma symptoms in 2013, approximately 45 years after separation. She then noted the STRs were absent of symptoms, signs, diagnosis, treatment, or mention of the right tonsil. The examiner pointed to the physical examinations in service, including dental examinations, which were silent for any abnormality of the right tonsil, and that periodic physical examinations noted normal findings of the mouth and throat. She also reported the separation examination revealed normal findings of the mouth and throat upon physical examination and the Veteran reported very good health. The examiner explained that the natural history of squamous cell cancer of the tonsil is that an undiagnosed squamous cell cancer of the tonsil does not stay silent and asymptomatic for 45 years, that the progression is faster than that and that squamous cell cancer becomes symptomatic much earlier. She also noted there is no evidence of continuity of symptoms, starting in active service or within one year of separation. Thus, she concluded that there is no evidence to support the contention that undiagnosed squamous cell cancer of the right tonsil began during active service. The VA examiner further found there was insufficient evidence that asbestos exposure caused squamous cell cancer of the tonsil. She noted that the risk factors for squamous cell cancer of the tonsil, well-documented in the literature, are tobacco use, alcohol, HPV, male sex and older age. The examiner noted that the majority of asbestos-exposed people do not develop any asbestos-related disease, even after 20 or 30 years of occupational exposure. She then explained that he does not have objective evidence of significant asbestos exposure, such as pleural plaques, and noted that, although the Veteran may have been on a ship that contained asbestos, his occupation of medic would not have caused significant asbestos exposure. The examiner explained that there was insufficient evidence in the medical literature for asbestos causing squamous cell cancer of the tonsil. Citing to The American Cancer Society, she noted that asbestos caused lung cancer and mesothelioma, that there was no mention of asbestos and tonsillar cancer and that that the link was unclear for cancers of the pharynx, stomach, colon, and rectum. Citing to the Veterans and Agent Orange Update 2018, the VA examiner concluded that since squamous cell cancer of the tonsil is not one of the specifically named cancers associated with Agent Orange exposure, that meant there was inadequate or insufficient evidence of an association between herbicides and Agent Orange. In citing to the Agent Orange Update 2018, the examiner specifically noted in the findings that there was inadequate or insufficient evidence to determine whether there was an association between Agent Orange/herbicides and any other specific type of cancer besides those referenced in the report, namely: soft tissue sarcomas; B-cell lymphomas (Hodgkin lymphoma, non-Hodgkin lymphomas, chronic lymphocytic leukemia, hairy-cell leukemia); monoclonal gammopathy of unknown significance (MGUS); bladder cancer; laryngeal cancer; cancers of the lung, bronchus, or trachea; prostate cancer; multiple myeloma; and AL amyloidosis. The VA examiner then found that squamous cell cancer of the tonsil was less likely than not incurred due to lead exposure during service. She explained that there was insufficient evidence in the medical literature that lead caused squamous cell cancer of the tonsil. In addition, the examiner explained that the lead in paint chips must be ingested to be toxic and that, as the Veteran did not eat the paint chips, he was not at risk of lead toxicity. The VA examiner summarized that the risk factors for tonsillar cancer included sex and older age, over 50. In addition, she noted that the tonsil was one of the commonest locations for a head and neck cancer and the majority of head and neck cancers are squamous cell cancers. The examiner noted that squamous cell cancer of the tonsil may have developed because it was one of the more common head and neck cancers, and the Veteran was a male of older age, even if other risk factors are not objectively known. In regard to the Veteran’s colon cancer, the VA examiner explained that the Veteran was diagnosed with colon cancer of the rectum in 2012, approximately 44 years after separation from active service. She explained that colon cancer, particularly of the rectum, does not stay silent and asymptomatic for 44 years and that the STRs were absent of any rectal or intestinal signs or symptoms. The examiner noted that the Veteran left the military at almost age 31 and that there was no evidence of continuity of symptoms beginning in active service or within one year of separation. Therefore, she concluded that colon cancer would be very unusual at that young age of 31, rendering it statistically less likely than not that this disability was incurred in service. The VA examiner again cited to the Veterans and Agent Orange Update 2018 in finding that since colon cancer was not one of the specifically named cancers associated with Agent Orange exposure in this report, noted above, this meant there was inadequate or insufficient evidence of an association between herbicides and Agent Orange. The VA examiner also concluded that the Veteran's colon cancer was less likely than not due to asbestos exposure. As also noted above, she explained that the majority of asbestos-exposed people did not get any asbestos-related disease, even after 20 or 30 years of occupational asbestos exposure and the Veteran did not have objective evidence of significant asbestos exposure, such as pleural plaques. She also noted that, although the Veteran may have been on a ship that contained asbestos, his occupation of medic would not have caused significant asbestos exposure. The examiner then noted that there was insufficient evidence in the medical literature for asbestos causing squamous cell cancer of the tonsil. Citing to The American Cancer Society, she noted that asbestos caused lung cancer and mesothelioma and that that the link was unclear for cancers of the pharynx, stomach, colon, and rectum. The examiner noted that The American Cancer Society found there were well-established, causative risk factors for colon cancer, including: older age, male sex, and being overweight. She also noted that colon cancer was the third most common cancer in men and that just being an older, overweight man increased the Veteran’s risk for colon cancer. The examiner explained that the Veteran may have had other risk factors which were not objectively known. She reasoned that the Veteran may have developed colon cancer because it was a very common cancer, and for common cancers, most patients did not have or require a specific chemical exposure, which was a reason they were a common cancer. The Board finds the August 2020 VA medical opinion to be highly probative, as it thoroughly considered and addressed all possible theories of contention, provided adequate rationale for the findings, and cited to the evidence of record and medical literature. The Board has also considered whether a grant of service connection is available on a presumptive basis. However, there is no medical evidence that the Veteran had cancer within a year of discharge from service. The Veteran was discharged from active service in 1968, and the evidence shows that his colon cancer was diagnosed in 2012 while his squamous cell carcinoma was diagnosed in 2014. No private or VA medical records show treatment for these conditions prior to 2012, and the Veteran has not asserted that he has had symptoms of either colon or tonsil cancer continuously since discharge from service. While the Veteran is competent to report that he was exposed to lead, asbestos and herbicides during service, he is not competent to provide a nexus opinion relating his current cancers to this exposure or that he had significant level of exposure to asbestos, as evidenced by medical findings such as pleural plaques. The issue is medically complex, as it requires specialized medical knowledge of the effect of lead, asbestos and herbicides on body systems. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, to the extent the Veteran’s statements indicate that squamous cell carcinoma of the right tonsil and colon cancer are related to his exposures in active service, they are afforded no probative weight. Although the Veteran’s statements regarding exposure to lead, asbestos and herbicides are competent, to the extent they indicate the Veteran ingested the lead or had significant exposure to asbestos, they are inconsistent with the medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As the August 2020 VA examiner reported above, without ingesting the lead, which the Veteran has not asserted at any time, he was not at risk of lead toxicity. In addition, the examiner noted that there is no objective evidence of significant exposure to asbestos such as pleural plaques, which the Board also observes is not demonstrated in the medical evidence of record, and the Veteran has not alleged that he had significant exposure or objective evidence of treatment for such. Consequently, the Board gives more probative weight to the probative evidence outlined above. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claims for service connection for colon cancer and squamous cell carcinoma of the right tonsil, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran’s claims for service connection for colon cancer and squamous cell carcinoma of the right tonsil are denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.