Agent Orange And Tonsil Cancer

[Lawyer4Vet]

Hi All:

When I Googled this topic I found a current thread in these forums regarding VA claims for service-connected tonsil cancer due to in-country expoure to Agent Orange dioxin. After going to that thread via Google, I was unable to reply to any post because it said it was "read only," even though there were recent posts. I've not been able to find that thread via HadIt.com.

I first began representing a Viet Nam vet for this claim when I was just a student in law school. It has taken nearly 16 years, that's right -- 16 years, and a successful appeal to the Court of Veterans Claims, but the veteran's widow and children have now established service connection for the the veteran's tonsil cancer and they will now get all the benefits they are entitled to.

I want to share my experience with this type of claim with other vets who have such a claim. If someone out there can direct me as to how I can access the thread regarding tonsil cancer and AO so that I can post there, I would greatly appreciate it. Thank you.

[Commander Bob]

In closing, let me say that the family veteran I represented who died from tonsillar cancer due to his dioxin exposure in Nam was my brother-in-law, and his surviving spouse and kids are my sister and nieces.

Please accept my condolences and my most positive best wishes to your sister and family. They are most fortunate to have you in their lives. I am always saddened to hear of a fellow veteran's death. Although I did not know him, he is a brother. He was a part of our Tontine.

Your perseverance is admirable. Your accomplishment and hard work is an inspiration, and will be an aid to other vets in the future. Best wishes and welcome aboard.

Bob

Edited January 31, 2009 by Commander Bob 92-93

[Lawyer4Vet]

Please note. The final sentence of my previous post should read: "It does not!"

One Lawyer’s Opinion as to Establishing Service-Connection for Subsequently-Manifested Tonsillar Cancer Due to Previous Exposure to Agent Orange and its Dioxin Contaminate During Viet Nam War.

Part II: Direct Service Connection

In order to establish service-connection of tonsillar cancer on a direct basis, the veteran must establish that it was incurred or aggravated in service. Remembering that they are apples and oranges, the veteran does not need to prove that his tonsillar cancer is manifested to any particular degree to establish service connection on a direct basis. The degree of the disease’s manifestation is only relevant to a service-connection determination on a presumptive basis per statute. In order to establish that the tonsillar cancer was incurred or aggravated in service, the veteran must establish a casual “nexus” or connection between service in Nam and the later-developed tonsillar cancer. To do this requires an expert medical opinion from a doctor that at best, unequivocally concludes that the tonsillar cancer was caused by the veteran’ exposure to Agent Orange dioxin when he served in Viet Nam, or which at the very least, concludes that it is as likely as not that the tonsillar cancer was caused by the veteran’s dioxin exposure in Viet Nam. If he can, the veteran is strongly encouraged obtain treatment from a doctor outside of the VA. The VA is allowed to give more weight to the opinion of a doctor who actually treats the veteran than to a non-treating doctor, and a doctor who is independent of the VA has only the interests of his patient to be concerned with. In any event, getting a doctor to render an opinion that the veteran’s exposure to herbicides while serving in-country did cause or at least likely caused the vet’s tonsillar cancer, may not be as difficult to get as one might think. The doctor may presume, just like the VA must presume, that the veteran was exposed to dioxin during service, and that dioxin is a likely carcinogen that causes a whole host of respiratory cancers when inhaled. By the basic anatomy and physiology of human respiration mentioned previously, the doctor may also then soundly conclude that the veteran’s tonsils necessarily filtered the carcinogen and that this intimate exposure of the carcinogen to the tonsils later caused development of the tonsillar carcinoma.

There is a crucial and substantial difference with the evidentiary burden that applies to the issue of direct service-connection, and it depends entirely on whether the veteran was or was not a combat veteran. If the veteran was a combat veteran, then the VA must accept any evidence which is consistent with the circumstances of service as sufficient proof of service-connection, unless that evidence is “rebutted by clear and convincing evidence to the contrary.”

In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(B).

Thus, if the claims file contains the favorable IMO discussed, above, then there is credible evidence record of a medically causal link between the tonsillar cancer and service in Viet Nam which is consistent with the circumstance of the veteran simply breathing in Viet Nam, and, unless rebutted by clear and convincing evidence, the VA must then find that service-connection is warranted. The VA may not weigh the favorable, credible IMO against any other medical opinion, or against any other evidence. Based solely on an unrebutted, favorable, credible IMO, the VA is supposed to accept that service connection is established. For this reason, if the veteran was a combat veteran, he should establish that fact, in the record, as soon as he can. He should submit his sworn affidavit and those of those he served with which affirm, under oath and with details, that the veteran engaged the enemy in combat. The veteran should also obtain his military records and submit those that indicate he participated in particular combat operations or battles. Was the veteran awarded any combat medals? If so, this should be established in the VA claims file too. DVA regulations require the agency to presume that the veteran actually saw combat if he was awarded a combat medal – including The Bronze Star Medal. Once he sufficiently establishes in the claims file that he was a combat veteran, the veteran should never let the VA ever ignore that fact of record. He should object to and oppose any attempt by the VA to weigh his doctor’s credible medical opinion evidence against any other less-favorable medical opinion evidence as justification for denying the veteran’s claim after invoking the Doctrine of Reasonable Doubt. If the VA does this, it does so directly contrary to the law.

The VA will obtain its own medical opinions and, per the statute, try and rebut the combat veteran’s favorable IMO with clear and convincing evidence. Though the VA may conclude that the opinions it obtains do rebut the veteran’ favorable IMO with clear and convincing evidence, a critical review of the VA’s medical opinions will likely show otherwise. Because of the rarity of tonsillar cancer, the VA’s less-favorable medical opinions will likely not be able to clearly and convincingly rebut the combat veteran’s favorable IMO. In the case I handled, the VA’s experts had to admit that it was possible that the combat veteran’s dioxin exposure was a cause of his tonsillar cancer, but they wouldn’t say that it was as likely as not that it was. In the face an IMO that does go that far, such VA IMO’s will not constitute evidence in the record that clearly and convincingly rebuts the combat veteran’s IMO, and service connection is established.

If the veteran is not a combat veteran, 38 USC 1154(:P does not apply, and the hurdle in the way of establishing service connection for the veteran’s tonsillar cancer is higher. For a non-combat veteran, the VA may weigh his favorable IMO against the VA’s IMO’s and other less-favorable evidence. But here again, the less-favorable medical opinions will likely not be ones that affirmatively conclude either that the veteran’s tonsillar cancer was definitely not caused by dioxin exposure or even that it is more likely than not that there is no service connection for the cancer. In the case I handled, the veteran was a combat veteran and we had an IMO that opined that because: the veteran was exposed to dioxin in Viet Nam; dioxin is a suspected carcinogen of respiratory cancers; the anatomy and physiology of the veterans respiration necessarily meant that his tonsils filtered the carcinogen; and, because of the rarity of they type of cancer, it was the doctor’s opinion that the veteran’s tonsillar cancer was caused by his exposure to dioxin while serving in Viet Nam. It its favorable decision in the case I handled, the Court of Appeals for Veteran Claims did not even mention that the veteran was a combat veteran. The Court was convinced that service connection had been established because of the veteran’ favorable IMO, and because even the VA’s medical opinions admitted that service connection was possible. That was enough.

[Commander Bob]

One Lawyer's Opinion as to Establishing Service-Connection for Subsequently-Manifested Tonsillar Cancer Due to Previous Exposure to Agent Orange and its Dioxin Contaminate During Viet Nam War.

Awesome stuff. Thank you so much. This kind of sharing is exactly what Tbird always talks about. Knowledge is very powerful, indeed.

[Cavman]

Lawyer 4vet:

I was a stage 4 tonsil SCC and well documented and admitted by the VA that I was heavily sprayed many times on the DMZ in Korea and Cambodian border in Nam. I have huge problems from the radiation and a predicted 5 yr max lifespan. How in the hell does some guys get awarded disability for this and some don`t? Isn`t there a precedence here? I get 100% benefits now, but its the principle to me and if I die from it I want my family to get benefits. Not to mention I asked for this disability in the early 70`s due to a child with a problem and was DENIED.

Cavman

Edited February 5, 2009 by Cavman

[Berta]

Excellent info-

There is one other AO cancer claim awarded at the BVA in which the veteran's disability was not on the presumptive list yet the IMO he got contained complete medical rationale that there was no other known medical etiology for his type of cancer but for his exposure in Vietnam to dioxin.

"He should object to and oppose any attempt by the VA to weigh his doctor’s credible medical opinion evidence against any other less-favorable medical opinion evidence as justification for denying the veteran’s claim after invoking the Doctrine of Reasonable Doubt. If the VA does this, it does so directly contrary to the law."

Yes- attack the VA doctor's credentials as well as any other possible medical errors or assessments that are incorrect and are not based on known medical principles of fact.Make sure your IMO doctor gives you a Curriciulum Vitae or at least states how he or she has the expertise to opine on your claim.

The VA-in my AO death claim- refused to even acknowledge my IMOs and therefore would not even extend me Benefit of Doubt (Relative Equipoise)

The BVA directed the AMC to acknowledge and consider the IMOs

and also my other considerable evidence.

Even if the VA opinion they recently obtained is against the claim (and my response which I was told they considered covered every medical aspect that the IMOs didnt cover)-

Relative Equipoise should kick in.

But VA owns the scale and as I said here before- I think they kick blind justice in the knee sometimes to make sure their opinion on their side of the scale carries more weight than our IMOs do-

I have knocked down 4 VA crapola medical reviews for my own claims and this time I had an additional IMO in 2006 to help knock down one.The BVA did not even acknowledge that VA opinion.

Sometimes it takes time to get a good handle on the medical aspects of a claim and often it takes just plain common sense to rebutt a negative VA examiner's opinion.

Still a good IMO is an investment that can be recouped in a few comp checks that might never come without an IMO. I suggest that before spending thousands of bucks on an IMO, to be sure that you feel you have a very valid basis for your claim.

My IMO doc made a statement that I know the VA examiner could not make-as to his expertise-and this is will be my first avenue of attack if the VA does not award my claim.

[DaughterofVet]

ATTN: Lawyer4Vet, anyone who can answer any of these questions

My dad is a Viet Nam veteran from '66 & '67 and he developed squamous cell tonsillar carcinoma thirteen years ago. He has entered claims to have his compensation reviewed to include the disease as a service-related injury. I read your post. In his most recent denial letter, dated September 15, 2009, the VA explains that the particular disease is not included in the applicable laws and despite the evidence provided by my dad (which includes letters from 2 VA doctors stating their belief that the cancer is service-related), the "Court" has already held that "to allow the opinions of individual doctors to trump the collective view of experts on the issue of whether a statistical association with herbicide exposure exists with respect to a particlular disease would be an impermissible expansion of the available remedies beyond those explicitly provided by Congress." However, I don't know which "Court" that is - is it the Supreme Court? And what case is that? How can I find that case?

Also, if the VA is relying on that court decision, it seems there is no way for my dad to ever provide enough "evidence" to persuade the VA to grant his claim. Furthermore, if the only way for the VA to add to the list provided in the Agent Orange Act and in s.1116 is through "experts" finding statistical association, how can I contact those experts? Also, are they considering the fact that it is common for people to have had their tonsils removed, so the disease is probably less common for that reason alone? s.1116©(1)( states that "If the Secretary determines that a presumption of service connection is not warranted, the Secretary, not later than 60 days after making the determination, shall publish in the Federal Register a notice of that determination. The notice shall include an explanation of the scientific basis for that determination." How can we find the reports/explanations of these experts/the Secretary to see why and how they decide which diseases are included and why they omitted tonsil in the definition of respiratory diseases?

I just don't know where to begin to help my dad out. Lawyer4Vet seems to have been through nearly the exact same situation. Should I tell my dad to get a doctor to opine that his was a lymphoma not caused by Hodgkin's disease?

I appreciate any insight. Thank you. And thank you to all the veterans who have served us.