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Cavman

Got Letter

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I appealed my Tonsil Cancer AO denial and just got a letter stating it was past the year, which I knew. They did say in the answer that even though it is past the one year allowed time to appeal that they are opening up the claim and will make a decision soon. This probably means nothing. Is this the norm?

Cavman

Edited by Cavman

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That would be a good thing I suspect.

Good Luck

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I appealed my Tonsil Cancer AO denial and just got a letter stating it was past the year, which I knew. They did say in the answer that even though it is past the one year allowed time to appeal that they are opening up the claim and will make a decision soon. This probably means nothing. Is this the norm?

Cavman

Baring a change in AO regulation or new evidence, you will at least get a denial letter, that you can NOD to. Then you will be able to keep the claim alive. Logic dictates that sooner or later, squamous cell tonsil cancer will be on the AO list.

Edited by Commander Bob 92-93

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http://www.va.gov/vetapp05/files5/0529676.txt

Hopefully this will help.

Citation Nr: 0529676

Decision Date: 11/04/05 Archive Date: 11/14/05

DOCKET NO. 00-21 257 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Paul,

Minnesota

THE ISSUE

Entitlement to service connection for the cause of the

veteran's death, as due to Agent Orange exposure.

REPRESENTATION

Appellant represented by: Sean Kendall, Attorney at Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran served on active duty from April 1969 to March

1971. He served in the Republic of Vietnam from July 1969 to

September 1970. He died in July 1998. The appellant is his

widow.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from the October 1999 rating decision of

the Department of Veterans Affairs (VA) Regional Office in

St. Paul, Minnesota (RO). The Board remanded this matter to

the RO in May 2001 for additional development. An April 2004

Board decision denied service connection for the cause of the

veteran's death but on appeal to the United States Court of

Appeals for Veterans Claims (Court) that decision was vacated

and the case was remanded to the Board.

Since the remand by the Court, the veteran's original claim

file has been lost and his claim file has been rebuilt.

However, because the claim is being allowed and the Board as

rebuilt the claim file, based on the Certification of the

Record to the Court, the case does not have to be first

remanded to the RO for reconstruction of the claim file and

initial consideration of new evidence received since the

April 2004 Board decision.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable

disposition of this appeal has been obtained.

2. The veteran died in July 1998, at age 50, and the death

certificate listed the immediate cause of his death as

metastatic squamous cell cancer of the head and neck.

3. At the time of his death, the veteran was not service

connected for any disabilities.

4. With the favorable resolution of doubt the medical

evidence shows that the veteran's cancer originated in the

larynx.

CONCLUSION OF LAW

The criteria for service connection for the cause of the

veteran's death have been met. 38 U.S.C.A. §§ 1103, 1110,

1112, 1113, 1310, 5100, 5102, 5103, 5103A, 5106, 5107, 5126

(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.309,

3.312 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA became effective on November 9, 2000, and describes

VA's duties to notify and assist claimants in substantiating

a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.

§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). Upon receipt

of a complete or substantially complete application, VA must

inform the claimant of information and medical or lay

evidence not of record: (1) necessary to substantiate the

claim; (2) that VA will seek to obtain; (3) that the claimant

is expected to provide; and (4) must ask the claimant to

provide any evidence in her or his possession that pertains

to the claim in accordance with 38 C.F.R. § 3.159(:lol:(1). 38

U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R.

§ 3.159(B) (2004); Charles v. Principi, 16 Vet. App. 370,

373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-

87 (2002). See also Valiao v. Principi, 17 Vet. App. 229,

332 (2003) (implicitly holding that RO decisions and

statements of the case may satisfy this requirement).

The Court remanded the case to the Board for compliance with

the VCAA. However, in light of the favorable outcome with

respect to the claim for service connection for the cause of

the veteran's death, there can be no possible prejudice to

the appellant in going ahead and adjudicating this claim.

Accordingly, no further development is required to comply

with the VCAA or the implementing regulations. And the

appellant is not prejudiced by the Board deciding the appeal

without first remanding the case to the RO. See Bernard v.

Brown, 4 Vet. App. 384 (1993).

II. Governing Laws and Regulations and Legal Analysis

To establish service connection for the cause of a veteran's

death, the evidence must show that a disability that either

was incurred in or aggravated by service, or which was

proximately due to or the result of a service-connected

condition, was either a principal or contributory cause of

death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310; 38

C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), 3.312(a); see also

Allen v. Brown, 7 Vet. App. 439, 448 (1995).

For a service-connected disability to be the principal cause

of death, it must singularly or jointly with some other

condition be the immediate or underlying cause of death, or

be etiologically related thereto. 38 C.F.R. § 3.312(B). For

a service-connected disability to be a contributory cause of

death, it must be shown that it contributed substantially or

materially, that it combined to cause death, or aided or lent

assistance to the production of death. 38 C.F.R. § 3.312©.

Furthermore, 38 C.F.R. § 3.312©(4) provides that 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 had a material

influence in accelerating death. In this particular

situation, though, it would not generally be reasonable to

hold that a service-connected condition accelerated death

unless such condition affected a vital organ and was, itself,

of a progressive or debilitating nature.

Service connection may be presumed for residuals of exposure

to Agent Orange for veterans who, during active military,

naval, or air service, served in the Republic of Vietnam

during the Vietnam War era, and have a disease listed at 38

C.F.R. § 3.309(e) (2004). See 38 C.F.R. § 3.307(a)(6)(iii)

(2004). The diseases afforded this presumption include

chloracne or other acneform disease consistent with

chloracne, Hodgkin's disease, multiple myeloma, acute and

subacute peripheral neuropathy, porphyria cutanea tarda,

prostate cancer, respiratory cancers (cancer of the lung,

bronchus, larynx, or trachea), and soft-tissue sarcoma.

Background

Pursuant to the law-of-the-case doctrine, it is the

responsibility of the Board to follow the findings, holdings,

and instructions contained in the court's mandate. Aronson

v. Brown, 7 Vet. App. 153, 159 (1994). In the November 2003

Order the Court stated that:

The appellant is the widow of deceased veteran []

who served on active duty from April 1969 to March

1971, including service in Vietnam. [] In January

1998, the veteran's stomach and the left lobe of

his liver were removed as a result of squamous

cell carcinoma. [] On March 9, 1998, a cancerous

mass was discovered in the region of the veteran's

tonsils and pharynx. [] In medical records from

the Mayo Clinic in March 1998, the cancerous mass

was described as 'involving the right tonsil

beginning at the level of the soft palate and

nasopharynx extending down in to [sic] the

oropharynx and hypopharynx. [] It was also noted

that the mass had 'infiltrated through the

pharyngeal wall into the larynx.' Id. The tonsil

was believed to be the "likely original primary

site' of the cancer [] and the veteran was

diagnosed with stage IV tonsillar cancer []. In

June 1998, the veteran filed a claim for service

connection for 'cancer of [the] oropharynx,

hypopharynx and larynx' []. In July 1998, the

veteran was again examined at the Mayo Clinic and

diagnosed with 'stage IV squamous cell carcinoma

of the pharynx [with metastasis] to [the] lymph

nodes in the neck and to organs within the upper

abdomen.' [] Metastasis is defined as 'the

transfer of disease from one organ or part to

another not directly connected with it.'

DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1023

(28th ed.1994). On July 29, 1998, the veteran

died at the age of 50. [] The veteran's death

certificate listed the cause of death as

'metastatic squamous cell cancer of [the] head and

neck.' Id. At the time of his death, the veteran

was not service[-]connected for any disabilities.

The Court further stated:

In October 1998, Dr. Scott Okuno, an oncologist

who treated the veteran at the Mayo Clinic [],

wrote that the veteran had 'evidence of tonsillar

squamous cell carcinoma that was metastatic to

the stomach' []. In November 1998, Dr. Robert

Niedringhaus, the veteran's chemotherapy

specialist [], stated that 'physicians at the

Mayo Clinic felt [the veteran's cancer] had

likely arisen in the tonsillar, throat or larynx

area, probably more likely in the region of the

tonsil' []. In December 1998, Dr. Jordan Weiner,

an ear nose and throat specialist who had

examined the veteran at the Mayo Clinic [], wrote

that 'although an exact origin of [the veteran's

cancer] cannot be precisely defined, the most

likely origin was in the oropharynx or

hypopharynx' []. Although Dr. Weiner noted that

the veteran's cancer had involved all levels of

the pharynx and the supraglottic larynx, he

stated that 'an origin in the larynx would be

unlikely given its appearance and extent.' Id.

The Court further stated that following the May 2001 remand

of the case:

In August 2001, [] a VA cardiologist, reviewed the

veteran's medical records and after consulting

with otolaryngologists he reported that the

'evidence does not indicate that the veteran's

cancer originated in the larynx.' []. On October

18, 2001, the appellant was afforded a hearing

before a decision review officer. [] At the

hearing the appellant asserted that the opinion

offered by [the VA cardiologist] did not comply

with the instructions of the Board because he is a

cardiologist not an oncologist, and his opinion

did not specifically state whether it is 'at least

as likely as not' that the veteran's cancer

originated in the larynx. [] In December 2001, []

a VA ear, nose and throat oncologist, and [another

VA physician who was], a VA radiation oncologist,

reviewed the veteran's claims file and opined that

the 'primary site [of the veteran's cancer] was

most likely the oropharynx.'

The Court also noted that on appeal:

[T]he appellant asserts that Office of the General

Counsel Precedent Opinion (VAOPGCPREC) 18- 97 (May

2, 1997) is inconsistent with the plain meaning of

38 U.S.C. § 1116(a)(2)(F). VAOPGCPREC 18-97 holds

that presumptive service connection cannot be

established for cancers listed as being associated

with Agent Orange exposure if the cancer developed

as the result of metastasis of a cancer not listed

as being associated with Agent Orange exposure.

However, because the case was remanded for VCAA compliance,

the Court did not address this particular argument but,

rather, instructed the Board to address the matter, if

necessary.

Since the remand by the Court, the veteran, via his attorney,

has submitted a September 2004 statement from Dr. Bash. Dr.

Bash stated that he had reviewed the veteran's claim file for

the purpose of rendering a medical opinion concerning the

veteran's fatal cancer. He stated that he had special

knowledge in the area of the head and neck cancers as a Board

Certified "sub specialist" and was a Senior Member of the

American Society of Neuro-Radiology (ASNR). Dr. Bash opined

that the veteran's exposure to Agent Orange "likely caused

his oropharynx cancer."

Dr. Bash noted that the record contained several opinions

that the veteran's cancer originated in the "right tonsillar

(oropharynx) area." The tumor apparently developed local

spread into the larynx, causing death after metastasizing,

according to the opinions of Dr. Okuno, Neidringhaus, Weine,

and VA physicians.

Dr. Bash noted that the VA physicians in December 2001 did

not make a specific etiology statement concerning the cause

of the primary tumor but simply stated that it originated in

the "oropharynx", that the larynx was without mucosal

lesions, and that Agent Orange had not been implicated [in

such cases] but that tobacco and alcohol exposure were

associated with increased malignant potential at both sites.

Dr. Bash stated that the nose, mouth, throat, and lungs were

all bordered by an epithelium that was a version of modified

respiratory epithelium. This epithelium was exposed to the

airborne and water born toxins of the environment, such as

from Agent Orange which was a powerful carcinogen. Medical

committees, formed at VA behest, at a 95 percent confidence

level, had found highly suggestive associations between Agent

Orange exposure and laryngeal and lung cancers. It was not

medically logical, pathophysiologically, to not also consider

the nasopharynx and oropharynx to be at high risk for the

development of cancer secondary to Agent Orange because these

regions were adjacent to the larynx and had similar types of

mucosa and, so, were exposed to the same carcinogens, but at

likely higher concentrations due to first exposure, as the

larynx and lungs.

Dr. Bash felt that the VA medical committees should not have

used a 95 percent medical causation standard level of

confidence because it was overly restrictive in light of the

fact that the VA legal standard for medical causation was one

of "likely as not" or the "50% - 50%" level. Dr. Bash

felt that the VA medical committees should also have used

this lower standard.

Dr. Bash felt that Agent Orange "likely" caused the

veteran's oropharynx cancer because (1) he was exposed to

Agent Orange and the mucosa between the nasopharynx-

oropharynx-larynx and lungs was continuous; (2) he had an

oropharynx tumor which caused his death by local metastasis;

(3) adjacent mucosal surfaces had documented suggestive

evidence of an association between Agent Orange and carcinoma

formation; and (4) literature supported an association

between Agent Orange exposure and the development of

oropharynx cancers.

Dr. Bash also reported that a 1997 study had found the

"[o]ral-cavity and pharynx, in 26 cases, had a relative risk

of 1.1. It should be noted that a relative risk of 1 is the

definition of as likely as not therefore a relative risk of

1.1 meets the more likely than not legal standard for

causation."

Although the December 2001 VA physicians had stated that

"Agent Orange [had] not been implicated in the later primary

site malignancies (pharynx)" Dr. Bash disagreed because (1)

the opinion was purely conclusory and without any supporting

documentation; (2) the physicians did not provide any

literature to support their opinion; (3) the physicians did

not comment on the IOM's Agent Orange publications; (4) the

physicians did not comment on the supportive study done in

1997; and (5) the physicians did not provide a clear etiology

of the veteran's tumor in terms of "as likely as not" but

simply stated that the tumor originated in the oropharynx.

Analysis

Initially, the Board notes that VA has found that

nasopharyngeal cancer is not associated with inservice

exposure to herbicides. 68 Fed. Reg. 27630 - 27641, 27632

(May 20, 2003).

In this case, there is sufficient evidence to conclude that

the veteran's cancer originated in the right tonsil and then

infiltrated into adjacent areas before metastasizing to other

areas, including the stomach.

The Board need not determine whether VAOGCPREC 18-97 is

inconsistent with 38 U.S.C.A. § 1116(a)(2)(F) because, to the

contrary, the Board will rely on the definition of

"metastasize" within that opinion to conclude that the

cancer originated within the larynx. Specifically, VAOGCPREC

18-97 stated that "t is well established that a primary

cancer of one organ may metastasize into other organs,

causing secondary tumors in those other organs. 'Metastasis'

is 'the transfer of disease from one organ or part to another

not directly connected with it.' Dorland's Illustrated

Medical Dictionary 1023 (28th ed. 1994)."

Here, however, the cancer originated in the right tonsil

which is a part of the pharynx. It then "infiltrated" the

adjacent tissue within the larynx. Because the pharynx and

the larynx are "directly connected", as indicated by Dr.

Bash, this spread was not the type of metastasis addressed in

VAOGCPREC 18-97. In this regard, nasopharyngeal cancers have

been determined by VA not to be associated with inservice

herbicide exposure. However, in this case, the veteran did

not have 'nasopharyngeal" cancer. Accordingly, the

veteran's cancer is not excluded by the determination

published by VA at 68 Fed. Reg. 27630 - 27641, 27632 on May

20, 2003.

So, the veteran's tonsilar cancer having infiltrated but not

metastasized to the larynx, and having metastasized only

after having infiltrated the larynx, the Board concludes that

service connection for the cause of the veteran's death is

warranted.

ORDER

The claim for service connection for the cause of the

veteran's death is granted.

____________________________________________

WARREN W. RICE, JR.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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Bob:

I agree that sooner or later it has to be put on the presumptive list. I know it has been being looked at for over a year now as possibly being the next cancer to go on the list.

Sharon:

Thanks for the decision. I also have found decisions where the vet hasn`t died yet. Again, I am 100&, but I want it in case it takes me out so family has a check coming in when I`m raising hell at Fiddlers Green...

Cavman

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