Citation Nr: 21040468 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-32 879 DATE: July 3, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's immediate cause of death was carcinoma of the tonsil. 2. Carcinoma of the tonsil is not a respiratory cancer. 3. The Veteran was not service connected for any disability during his lifetime. 4. An in-service disease or injury did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1310, 1311; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1969 to March 1972. He died in September 2010. The appellant has filed the claim as the Veteran's surviving spouse at the time of his death. In November 2017, the appellant testified at a videoconference hearing before a Veterans Law Judge other than the undersigned. In November 2020, the VA notified the appellant that the Veterans Law Judge who conducted the November 2017 hearing was not available to participate in the appeal, and she was given an opportunity to request a new hearing within 30 days. In a December 2020 correspondence, the appellant chose to submit a written statement rather than attend a new hearing and included additional evidence for Board consideration. In June 2018, the Board remanded the claim to determine the threshold question as to whether the Veteran's service from June 12, 1970 to March 7, 1972 is a bar to the receipt of VA compensation benefits and to obtain a VA medical opinion. VA determined the Veteran's discharge status did not bar him from receiving VA compensation and obtained a medical opinion. The Board finds there was substantial compliance with this development. In March 2021, the Board again remanded the claim for an additional medical opinion, finding that while the examiner had responded to the questions asked, "open medical questions remain[ed]." The Board finds there was substantial compliance with this development. The case now returns to the Board for further appellate review. Entitlement to service connection for the cause of the Veteran's death. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC) benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a [claimant] 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). A disability diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). On January 1, 2021, the National Defense Authorization Act of FY 2021 became law. One section of the law added three disease to the list of those presumed service connected in veterans exposed to herbicide agents. Specifically, the law adds to 38 U.S.C. § 1116(a)(2), which currently lists diseases in subparagraphs (A) through (H), the following: (I) Parkinsonism, (J) Bladder cancer, and (K) Hypothyroidism. The appellant filed a claim in June 2011 seeking entitlement to service connection for the cause of the Veteran's death. The Veteran's death certificate shows that he died in September 2010. The immediate cause of death was carcinoma of the tonsil. The death certificate did not list any underlying causes of death. At the time of the Veteran's death, he was not service connected for any disability. Service treatment records are unavailable, but the appellant has not alleged that carcinoma of the tonsil began in service. Rather, the appellant has asserted that carcinoma of the tonsil was caused by herbicide agent exposure the Veteran experienced while serving in Vietnam. The evidence of record verifies that the Veteran served in Vietnam; therefore, herbicide agent exposure is conceded. The appellant submitted evidence in support of her claim that the Veteran's carcinoma of the tonsil was caused by herbicide agent exposure. For example, in a September 2011 VA Form 21-4138, Statement in Support of Claim, the appellant stated the Veteran's carcinoma of the tonsil can be considered a respiratory or soft tissue cancer that has been linked to Agent Orange exposure. She stated the Veteran was diagnosed with throat cancer in January 2007, and, although he received treatment, the cancer spread to his lungs and chest wall, and he passed away in September 2010. In an April 2012 submission, the appellant cited to two Board decisions she believes are related to this case. In the November 2005 Board decision, service connection was granted for the cause of the veteran's death, as due to Agent Orange exposure. According to 38 C.F.R. § 20.1303, previously issued Board decisions are not precedent; however, they "can be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." The cited Board decision shows that the decision to grant service connection was based on an etiology opinion from a private physician, where the physician opined that the veteran's exposure to Agent Orange "likely caused his oropharynx cancer" and included a detailed rationale. In the instant case, the record does not include a favorable etiology opinion, and, instead, includes a medical opinion that there is no relationship between the Veteran's carcinoma of the tonsil and his military service. As such, the November 2005 Board decision does not reasonably relate to the case at hand. In the October 2010 Board decision, service connection was granted for the cause of the veteran's death. The cited Board decision shows that the decision to grant service connection was based on an etiology opinion from a Veterans Health Administration oncologist who linked the veteran's metastatic oropharyngeal cancer to the veteran's Agent Orange/herbicide exposure in service. One of the bases for the opinion was that oropharyngeal cancer had similar environmental exposure, anatomy, and physiology to respiratory cancers, which had been recognized as an herbicide presumptive disease. In the instant case, the record does not include a favorable etiology opinion, and, instead, includes a medical opinion that there is no relationship between the Veteran's carcinoma of the tonsil and his military service. As such, the October 2010 Board decision does not reasonably relate to the case at hand. In a March 2014 correspondence, the appellant noted that she was aware that Board decisions are non-precedential, but she sought to use these decisions as medical evidence of a link between herbicide agent exposure and tonsil cancer. In June 2014, the appellant submitted an article titled, "Tonsil Cancer," which documented that tonsil cancer is a form of throat cancer (oropharyngeal cancer) that affects the tonsils. The article states the majority of tonsil cancers are linked with exposure to the human papillomavirus (HPV). The article also states that alcohol and tobacco use are also major risk factors for the development of tonsil cancer. This article does not establish a nexus between the Veteran's tonsil cancer and herbicide agent exposure, and it is nonprobative evidence. In November 2017, the appellant testified that they did not bring up herbicide agent exposure to the Veteran's oncologist, who is now retired; therefore, they were unable to request a medical opinion from his oncologist. The appellant testified that a Board decision from approximately 2009 found the tonsils were a part of the respiratory system, and respiratory cancers are entitled to presumptive service connection. At the hearing, the appellant submitted three additional Board decisions in support of her claim. The Board notes two other decisions were previously cited in April 2012, and they have been discussed above. The appellant submitted a copy of an October 2009 Board decision that granted service connection for throat cancer and squamous cell carcinoma of the left tongue base and tonsil as a result of exposure to herbicides. The Board's decision was based on an expert medical opinion from October 2009, where the examiner opined the risk factors for squamous cell carcinoma, left tonsil and left base of the tongue, are often related to exposure to both alcohol and tobacco, but the veteran had never smoked or consumed alcohol; therefore, there is no exposure to alcohol or tobacco that could contribute to the malignancy. In the instant case, the Veteran previously smoked and used smokeless tobacco when he was diagnosed with carcinoma of the tonsil, and this consumption was found to be the cause of his carcinoma of the tonsil. Accordingly, the October 2009 Board decision does not reasonably relate to the case at hand. The appellant submitted a copy of an August 2012 Board decision that granted service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to herbicides. The Board's decision was based on multiple positive opinions from a private physician, who related that veteran's cancer to Agent Orange and provided a rationale for the conclusion. In the instant case, the appellant has not submitted probative evidence (a medical opinion with a rationale) that herbicide agent exposure caused the diagnosis of carcinoma of the tonsil. Accordingly, the August 2012 Board decision does not reasonably relate to the case at hand. The appellant submitted a copy of a March 2015 Board decision that granted service connection for squamous cell carcinoma of the left tonsil with metastases to the lungs, to include as due to exposure to herbicides. The Board's decision was based on several positive medical opinions. In the instant case, the appellant has not submitted probative evidence (medical opinion with a rationale) that herbicide agent exposure caused the diagnosis of carcinoma of the tonsil. Accordingly, the March 2015 Board decision does not reasonably relate to the case at hand. In April 2020, the appellant noted on a VA Form 21-4138 that the Veteran was a light smoker, smoking about a pack a week, until 1986, when their son was born. However, a January 2007 private treatment record documents the Veteran quit smoking in 1990, and that for the past 13 years, the Veteran used one can of smokeless tobacco every two weeks. A medical opinion was provided in February 2020, but the Board finds it is an inadequate opinion because the examiner did not review medical records in the claims file. A medical opinion was provided in September 2020. The examiner opined that carcinoma of the tonsil was a primary cancer as the evidence goes beyond at least as likely as not. The examiner wrote the Veteran's treatment records show no controversy in his diagnosis, nor is there any controversy at all as to what the primary origin of the Veteran's carcinoma was. The examiner noted the Veteran's treating ear, nose, and throat (ENT) hem-oncologist, and radiating oncologist all gave an unwavering diagnosis of tonsillar carcinoma, as cited in referenced treatment records from January 2007, two records from January 2008, and October 2009. The examiner wrote that there were two oncologists whose diagnoses agreed and who actually had the advantage of treating the Veteran's cancer for three years firsthand. The examiner explained that not only does the Veteran have a definitive diagnosis of primary tonsil cancer, which is not part of the larynx or trachea, but he had a definite cause for this cancer, which was long-term use of chewing tobacco. The examiner wrote this is a well-known cause of cancer of the structures of the oropharynx. Additionally, the examiner noted there is absolutely no mention of this Veteran's cancer involving the larynx or trachea in the evidence of record. The Board affords the September 2020 VA examiner's opinion high probative value, as the examiner reviewed the file, including citing to evidence of record, and provided an opinion that was based on evidence in the file and medical principles. In December 2020, the appellant submitted medical articles in an effort to establish a nexus between the Veteran's tonsil cancer and herbicide agent exposure. An article titled, "Agent Orange Linked to Overall Head/Neck Cancers" discussed a report in the Oral Oncology Journal that described how self-reported Agent Orange exposure was linked with increased risk of oropharyngeal, nasopharyngeal, laryngeal, and thyroid cancers. The article goes on to say the link between Agent Orange and head/neck cancers is largely unknown, and laryngeal cancer is the only subsite with sufficient evidence of an Agent Orange association, according to the report. This statement makes it clear the article does not establish a nexus between Agent Orange and head/neck cancers and specifically tonsil cancer. This article is nonprobative evidence in connection with the appellant's claim. An article titled, "Increased Risk of Head/Neck Cancer in Agent Orange exposed Vietnam Era Veterans" stated the same findings as the previous article such that Agent Orange exposure carries an improved risk of head/neck cancer, and that the link between Agent Orange and head/neck cancers is largely unknown. The article does not establish a nexus between the Veteran's tonsil cancer and Agent Orange, and it is nonprobative evidence. A medical opinion was provided in April 2021. The examiner opined that herbicides (including Agent Orange) are not a recognized cause or contribute to the development of tonsillar cancer citing to an UpToDate article in 2021 titled, "Epidemiology and risk factors for head and neck cancer." The examiner noted that multiple peer-reviewed studies in the medical literature have failed to find a consistent relationship between herbicide agents and this condition. Agent Orange has not been established as a risk factor for this condition. Veterans and Agent Orange - Update 2018 (National Academy of Sciences) has reviewed the relevant published, peer-reviewed medical literature and has determined there is not sufficient evidence of an association between Agent Orange and this condition, stating "there is inadequate or insufficient evidence to determine whether there is an association between exposure to the [chemicals of interest (COIs)] and oral, oropharyngeal, or nasopharynx cancers." The examiner noted a large retrospective cohort study of veterans with self-reported Agent Orange exposure showed that Agent Orange exposure gave an RR of 1.16 for development of oropharyngeal cancers. Data was limited on current and past tobacco use and current and past alcohol use. The examiner explained that an RR of 1 shows no difference compared to controls. An RR of 1.16 is not indicative of as likely as not. To be considered as likely as not a causative risk factor, the RR needs to be 2.0 or higher. (Mowery A. Increased risk of head and neck cancer in Agent Orange exposed Vietnam Era veterans. Oral Oncol. 2020; 100:104483. Epub 2019 Dec 3). The examiner noted that recognized primary risk factors for development of head and neck cancers include tobacco use and alcohol. Other risk factors include poor oral hygiene, mouthwash use, genetic factors, and viral infections such as HPV. Tobacco use risk is also dose dependent, with heavy smokers having a 5 to 25 fold increased risk of cancers compared to non-smokers. The examiner noted the appellant had reported the Veteran had a light history of smoking, but pointed out that the Veteran also used smokeless tobacco for 15-20 years prior to his diagnosis of tonsillar cancer. The examiner wrote that smoking and the use of smokeless tobacco were the most likely causes for his development of metastatic tonsillar cancer citing to Epidemiology and risk factors for head and neck cancer in UpToDate, 2021. The examiner addressed one of the Board decisions that the appellant had submitted that stated that the definition of the respiratory system, in accordance with the medical definition, includes the nostrils, nasopharynx, glottis, trachea, bronchi and bronchioles, and that the oropharynx was part of the respiratory system. The examiner wrote this is an incorrect statement. The tonsils are part of the lymphatic system; they are not part of the respiratory system. (Pan WR. Components of the Lymphatic System. In: Atlas of Lymphatic Anatomy in the Head, Neck, Chest and Limbs. Springer, Singapore. 2017). The examiner also opined that the Veteran had a primary left tonsillar squamous cell cancer diagnosed in 2007, with subsequent development of bilateral pulmonary metastases followed by bone metastases. The examiner noted the November 2008 letter from Dr. Suarez states that a PET scan on 10/31/2008, compared to one in April 2008, showed extensive metastatic disease with multiple bilateral lung metastases. While the letter stated that they could be dealing with a primary lung vs. metastatic disease from the Veteran's head and neck cancer, all subsequent treatment notes and imaging studies show that the disease in the lungs was metastatic from his primary left tonsillar cancer. The examiner wrote that upon discussion of the case with a Milwaukee VA Staff Oncologist, while a primary lung cancer is a remote possibility (one percent chance), based on the body of evidence, the lung lesions were much more likely metastases from the primary tonsillar cancer. The Veteran's PET scan in 2007 at the time of his diagnosis of left tonsillar cancer, was negative for any lung primary. Subsequent PET scans showed bilateral pulmonary nodules, consistent with metastatic disease. There is no notation of a lung primary in his imaging studies or at his recurrent radiation oncology visits. The examiner noted that the rendered opinions were discussed in detail with a Milwaukee VA Staff Oncologist on April 9, 2021. The Board affords the April 2021 medical opinion high probative value, as the examiner reviewed the file, including citing to evidence of record and medical literature, and provided a detailed opinion that was based on evidence in the file and medical principles including discussing the case with an oncologist, an expert in the treatment of cancers. While the appellant believes that the Veteran's tonsil cancer, which caused his death, is related to presumed in-service herbicide agent exposure, she is not competent to offer opinions as to the etiology of tonsil cancer, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the appellant's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the Veteran's cause of death, tonsil cancer, and the presumed in-service exposure to herbicide agents to weigh against the September 2020 and April 2021 negative nexus opinions. For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claim for service connection for cause of the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the appellant's claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.