MALIGNANT NEOPLASMS OF THE TONSILS

Summary

The Veteran, a Veteran who served from May 1966 to April 1968, including service in the Republic of Vietnam, appeals the denial of service connection for tonsillar cancer. The Veteran was diagnosed with tonsillar cancer in 2002. The Veteran claims this cancer is related to presumed herbicide exposure, such as Agent Orange, during his Vietnam service. The Board acknowledged the Veteran's service in Vietnam and the presumption of herbicide exposure. However, tonsillar cancer is not a presumptive condition under the herbicide exposure regulations. The Veteran provided lay statements alleging a connection, including reports of throat irritation in service and a doctor's suggestion of a link. A VA examination in January 2022 concluded that the Veteran's tonsillar cancer is not causally related to herbicide exposure, citing the Veteran's extensive smoking history and the HPV virus as more likely causes. The VA examiner also noted that the cancer, diagnosed in 2002, would likely have manifested much earlier if it had originated in service in 1968. The Board found the VA opinion highly probative and persuasive, deeming the Veteran's lay statements regarding causation incompetent due to lack of medical expertise. The Board also found the evidence persuasive that the cancer did not onset in service or within a year of separation. As the evidence preponderated against service connection, the benefit of the doubt doctrine was not applied. Service connection for tonsillar cancer was denied.

Rationale

Current diagnosis of tonsillar cancer established.; Service in Vietnam during presumptive period for herbicide exposure.; Tonsillar cancer not on presumptive list for herbicide exposure.; VA opinion found herbicide exposure not causally related.; VA opinion cited smoking and HPV as more likely causes.; VA opinion noted cancer likely would have manifested earlier if service-related.; Veteran's lay statements on causation found incompetent.; Evidence persuasive that cancer did not onset in service or within one year of separation.; Evidence persuasive that condition is not causally related to herbicide exposure.

Full Decision Text

Citation Nr: 22017834
Decision Date: 03/26/22	Archive Date: 03/26/22

DOCKET NO. 11-02 864
DATE: March 26, 2022

ORDER

Entitlement to service connection for tonsillar cancer is denied.

FINDINGS OF FACT

1. The Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to herbicide agents, to include Agent Orange.

2. The Veteran was diagnosed with tonsillar cancer in 2002.

3. The Veteran's tonsillar cancer is not causally related to his presumed herbicide exposure in service.

4. The Veteran's tonsillar cancer did not manifest during active duty service or within a year of his separation and is otherwise unrelated to his active duty service. 

CONCLUSION OF LAW

The criteria for entitlement to service connection for tonsillar cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5107; 38C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had honorable active duty service from May 1966 through April 1968, to include service in the Republic of Vietnam. The Veteran received, among other commendations, the Vietnam Service Medal and the Vietnam Campaign Medal.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

In June 2017, the Board reopened the claim and remanded the matter for further development. In September 2018, the Board denied the Veteran's claim of service connection for tonsillar cancer. The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued a memorandum decision that vacated the Board's September 2018 decision and remanded the matter to the Board. 

The Board remanded the matter most recently for further development in December 2021. It has since returned to the Board. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to service connection for tonsillar cancer 

I. Legal Principles for Service Connection

The Veteran contends he is entitled to service connection for tonsillar cancer.

To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Certain chronic diseases (including malignant tumors) may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b).

When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (
 to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b).

When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that "shown as such in service" means "clearly diagnosed beyond legitimate question"). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39.

The law provides a presumption of herbicide agents, and provides for service connection for certain diseases that are associated with exposure to herbicide agents that become manifest within a specified time in any veteran who, during active military, naval, or air service, served in the Republic of Vietnam from January 9, 1962 through May 7, 1975 even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). The presumptive list of diseases does not include tonsil cancer, squamous cell carcinomas, or malignant neoplasms of the tonsils. 

Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990). 

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki,581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.").

The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board's analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant).

II. Analysis

The record in this matter establishes that the Veteran has a current disability of malignant neoplasm of the tonsil, which was diagnosed in 2002. See April 2018 VA examination. Thus, the Board finds that the Veteran has the claimed current disability.

Further, the Veteran's statements of record of service in Vietnam are corroborated by military records establishing that he was on active duty from May 1966 through April 1968, to include service in the
0) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant).

II. Analysis

The record in this matter establishes that the Veteran has a current disability of malignant neoplasm of the tonsil, which was diagnosed in 2002. See April 2018 VA examination. Thus, the Board finds that the Veteran has the claimed current disability.

Further, the Veteran's statements of record of service in Vietnam are corroborated by military records establishing that he was on active duty from May 1966 through April 1968, to include service in the Republic of Vietnam. See, e.g., DD-214 (showing a Vietnam Campaign medal). As the Veteran's service falls within the presumptive date range, the Veteran is presumed to have been exposed to certain herbicide agents, such as Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iv).

The list of presumptive diseases associated with exposure to certain herbicide agents does not include the claimed condition. See 38 C.F.R. § 3.309(e). Thus, service connection may not be granted on a presumptive basis under 38 C.F.R. § 3.307.

Even though the Veteran's claimed condition does not qualify for presumptive service connection as related to herbicide exposure, the Veteran is still permitted to have his claim considered as a direct service connection claim. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis).  

The Veteran has claimed only herbicide exposure as the in-service incurrence that caused his tonsillar cancer. There is no other in-service incurrence raised in the pleadings or otherwise in the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361(2008) (where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). As herbicide exposure is presumed, and the current disability is established, entitlement to direct service connection hinges upon whether there is a medical nexus between the claimed condition of tonsillar cancer and herbicide exposure.

In his January 2011 substantive appeal, the Veteran recalled that during service he went to sleep with green vegetation and woke up with brown, dead vegetation, causing throat discomfort. At his April 2018 VA examination, he reported that he spent several weeks near a field that was being sprayed with herbicide and that immediately afterward he noticed a sore throat that continued throughout his life. He reported that after service he was given oral antibiotics for a sore throat, and it improved a little and then returned. See April 2108 VA examination. In a February 2010 statement the Veteran reported that after service a doctor who was a friend and another doctor who his former spouse worked for in the 1980s both gave him pills for his tonsils without charging him.

In January 2022, a VA opinion was obtained as to whether it is at least as likely as not that the Veteran's tonsillar cancer is secondary to his presumed herbicide exposure in service. The examiner stated that a medical literature search did not show any articles supporting Agent Orange as a cause of tonsillar cancer. The examiner opined that the Veteran's approximately 50-year history of smoking, with or without exposure to human papillomavirus, is the most likely cause of his tonsillar cancer. The examiner acknowledged the Veteran's report of throat irritation in service. However, the examiner noted that the Veteran's separation examination was negative for an oropharyngeal condition. The examiner stated that even if the Veteran's report of throat irritation in service is conceded, it is unlikely that such was caused by tonsillar cancer as it is highly unlikely that a person could have survived with tonsillar cancer from 1968 until 2002 without manifestations of the condition itself. The examiner noted that throat irritation can be caused by numerous sources, including smoking, allergens, dehydration, or an upper respiratory infection. The examiner stated that there is no evidence to suggest the onset of cancer in service, and it would almost certainly have been lethal in the ensuing decades had its nexus been in service.

The Board finds that the January 2022 opinion is highly probative as it considers the Veteran's history and medical records.

The Board acknowledges the Veteran's own opinion that his tonsillar cancer, diagnosed
 is conceded, it is unlikely that such was caused by tonsillar cancer as it is highly unlikely that a person could have survived with tonsillar cancer from 1968 until 2002 without manifestations of the condition itself. The examiner noted that throat irritation can be caused by numerous sources, including smoking, allergens, dehydration, or an upper respiratory infection. The examiner stated that there is no evidence to suggest the onset of cancer in service, and it would almost certainly have been lethal in the ensuing decades had its nexus been in service.

The Board finds that the January 2022 opinion is highly probative as it considers the Veteran's history and medical records.

The Board acknowledges the Veteran's own opinion that his tonsillar cancer, diagnosed in 2002, is causally related to his in-service herbicide exposure. However, the Board finds that as a lay person, the Veteran does not have the education, training, or experience to competently opine on such a complicated etiology question involving unseen processes and diagnosed with specialized medical testing. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements in this regard are not competent or persuasive evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. 

The Board further notes that the Veteran has reported that a doctor once suggested that his tonsillar cancer is causally related to his in-service herbicide exposure. There is no such opinion directly from a doctor in evidence, and the Board finds that the Veteran's reported recollection has limited probative value. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that a layman's account of what a physician purportedly said is too attenuated and inherently unreliable to constitute medical evidence).

Based on the forgoing, the Board finds that the January 2022 VA opinion is the most probative evidence of record as to whether the Veteran's tonsillar cancer is causally related to his presumed herbicide exposure. The Board finds that the evidence is persuasive that the Veteran's tonsillar cancer is not causally related to his presumed in-service herbicide exposure.

The Board further finds that the evidence is persuasive that the Veteran's tonsillar cancer did not onset in service or within a year of his separation from service. 

The Board acknowledges the Veteran's reports of throat discomfort in service and since service. The Board finds the Veteran competent to report throat discomfort, which is readily observable to a lay person. However, the Board finds that he is not competent to opine that the discomfort he experienced in service and subsequent to service was a manifestation of tonsillar cancer, which is diagnosed with medical testing, and is not capable of lay observation. See Jandreau, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology); 38 C.F.R. § 3.303(b) (a showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time). The Board finds that the most probative opinion as to whether the Veteran's tonsillar cancer onset in or within a year of his service is the January 2022 VA opinion. The VA doctor opined that had the Veteran's tonsillar cancer been present in 1968, the year the Veteran separated from service, it would have manifested well prior to 2002.

The Board finds that the evidence is persuasive that the Veteran's tonsillar cancer did not onset in service or within a year of his separation. The Board has further found that the evidence is persuasive that the condition is not causally related to the Veteran's presumed in-service herbicide exposure.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for tonsillar cancer is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Christensen

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
.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for tonsillar cancer is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Christensen

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.