Citation Nr: 22013345 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-38 411 DATE: March 9, 2022 ORDER Entitlement to service connection for squamous cell carcinoma of left tonsil or its residuals is denied. FINDING OF FACT The Veteran does not have an active diagnosis of squamous cell carcinoma of left tonsil nor does the Veteran have residuals of squamous cell carcinoma of the left tonsil that are a result of an event, injury, or disease during active service, nor secondary to service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of left tonsil or residuals of such have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1969 to December 1970. 1. Entitlement to service connection for squamous cell carcinoma of left tonsil or residuals The Veteran contends that he developed left tonsil cancer as a result of exposure to Agent Orange in Vietnam during active service or as a result of smoking secondary to service-connected PTSD. After a thorough review of the evidence, the Board finds that entitlement to service connection for left tonsil cancer or residuals is not warranted. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or related to a service-connected disability. The Veteran served in the Republic of Vietnam. The Veteran was diagnosed and treated for left tonsil cancer in 2004, prior to the period on appeal. The February 2016 VA examiner noted that the Veteran's left tonsil cancer was in remission but listed residuals including neck spasms with physical activity, headaches and numbness in the feet, and constant dry mouth and throat. Accordingly, the Veteran has met the first element for service connection, a current diagnosis of condition. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. These diseases include respiratory cancers (cancers of the lung, bronchus, larynx, or trachea). 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). The Veteran asserts that the left tonsil cancer is a respiratory cancer and therefore should be included as a presumptive condition related to herbicide agent exposure. The Veteran submitted medical articles and other evidence to support this position. The Board finds that this evidence is not persuasive as to the Veteran's assertion. One of the submitted articles states, "the tonsils are lymph nodes in the wall of your pharynx," (Breathe) and another states, "the tonsils are part of the immune system." ("Can you get cancer on the tonsils?" by Sissons.) The same Sissons article states that "people who drink alcohol, smoke, or have human papillomavirus (HPV) have a greater risk of developing tonsil cancer." In the June 2021 VA medical opinion, the examiner stated that the tonsils are part of the immune system, not the respiratory system. The same examiner opined that the Veteran's left tonsil cancer was more likely than not related to the Veteran's history of smoking. The evidence of record notes that the Veteran began smoking at the age of 15 (as relayed by the Veteran in the September 2013 private examination submitted), and ceased smoking in 1996, at which time he began to use chewing tobacco and did not quit until he was diagnosed with tonsil cancer in 2004. The same 2013 examination noted that the Veteran drank alcohol heavily until about 8 years prior to the examination. In a February 2004 CAPRI note, the Veteran reported he used chewing tobacco, which was the time period when he was seeking treatment for a mass in the neck that was eventually diagnosed as tonsil cancer. For a claim, as here, received by VA after June 9, 1998, service connection is expressly precluded for any disability related to chronic tobacco use (including but not limited to cigarettes and smokeless tobacco). See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. This statute and regulation, however, do not preclude the establishment of service connection based upon a finding that a disease or an injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 C.F.R. §§ 3.307, 3.309, 3.313, or 3.316. The Veteran also submitted a Board decision pertaining to another veteran in which entitlement to service connection was granted for tongue cancer. The Board notes that Board decisions are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. In that other Board decision, unlike the present situation, the veteran had also obtained medical opinions noting that he had not smoked for 20 years at the time of diagnosis and the medical providers provided a positive association between the Veteran's tongue cancer and exposure to Agent Orange in service. The Veteran also asserts that he developed left tonsil cancer as a result of smoking that was resulting from PTSD symptoms. Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. The Veteran is service-connected for PTSD, tinnitus, and bilateral hearing loss disability since 2004. As noted above, claims received after June 9, 1998, are precluded from entitlement on the basis of smoking. 38 C.F.R. § 3.300. Further, in the July 2021 VA medical opinion, the examiner noted again that tonsil cancer is most likely due to smoking, alcohol, or HPV and that since HPV testing was not done during the course of the Veteran's treatment for tonsil cancer, there is no definitive cause, and the Veteran's tonsil cancer could be attributed to alcohol, genetic history, or have been idiopathic and spontaneous. The examiner further commented that linking smoking to PTSD would be completely speculative; the Veteran smoked in service and after, during a time period when smoking overall was prevalent. The Board again notes that the Veteran's 2013 examination noted that he had started smoking at age 15. The examiner's opinion 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). While the Veteran is competent to report having experienced symptoms of tonsil cancer that was ultimately diagnosed, and to residuals related to that condition, he is not competent to provide an etiology of that condition or its residuals. Generally, such determinations require significant medical expertise and are therefore, outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to provide an etiology as to any tonsil cancer or its residuals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for left tonsil cancer or its residuals is warranted. Rather, the evidence persuasively weighs against entitlement to service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to this matter. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.