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Lawyer4Vet

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  1. 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.
  2. 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 I: Presumptive Service Connection One must first appreciate that if he served in Viet Nam during that war, the law presumes that the veteran was exposed to Agent Orange and its contaminant, dioxin (the suspected carcinogen), and that, under the law, there are two possible ways to establish that the veteran’s subsequent tonsillar cancer is “service-connected,” or medically, casually connected to Agent Orange/dioxin exposure in Nam. Service connection can be established on a presumptive basis, and/or on a direct basis. To fully promote his interests, the veteran should try to make a case for service-connection on both bases. Presumptive service connection for a disease due to Viet Nam herbicide exposure is purely statutory per 38 U.S.C. § 116. If the disease is on the statute’s list of diseases and manifest to the requisite extent, then the Viet Nam veteran is entitled to the presumption that the disease is service-connected, and if the disease is not on the list or not manifested to the requisite extent, then it is not entitled to the presumption of service-connection. “Respiratory cancers” (i.e., cancer of the lung, bronchus, larynx or trachea) are on the list and thus are presumed to be service-connected. However, cancer of the tonsil is not on the list – at least not specifically. Of course, as a matter of basic human anatomy and physiology, the air the veteran breathed while in Viet Nam which is presumed to have exposed the veteran to Agent Orange dioxin, was necessarily filtered through the veterans’ tonsils if his tonsils had not been previously removed. This basic anatomy and physiology of human respiration is an important part of the Independent Medical Opinion (IMO) the veteran will need to support his claim of service-connection, as I will discuss flater. But again, cancer of the tonsil is not expressly listed on the statutory list and it is also not a cancer of the lungs, bronchus, larynx or trachea. In both the applicable statute and VA regulations found in the Code of Regulations, it states: “Respiratory cancers ( cancer of the lungs, bronchus, larynx or trachea).” However, on the VA website’s .PDF download of this list it states: “Respiratory cancers, including cancer of the lungs, larynx, trachea and bronchus” (emphasis added). The VA’s website list is either misleading or it represents a shift in the VA’s view of respiratory cancers. In any event, the veteran should be advised that both the statute and the regulation are “the law,” and the law currently defines and clearly limits “respiratory cancers” to just those of the lungs, bronchus, larynx or trachea. However, the veteran may be able to show the VA website list language and, together with a favorable IMO on the subject, convince the VA, at least at the Regional Office level, that because tonsils filter air during respiration, they can be included as another anatomical site for a “respiratory cancer” entitled to the presumption of service-connection. “Non-Hodgkin’s lymphoma” (i.e., lymphoma not caused by Hodgkin’s Disease), is also on the statutory list. By medical definitions, a “lymphoma” includes cancer of “lymphoid tissue,” and the tonsils are organs of lymphoid tissue. Thus, it not unreasonable to medically conclude that a liberal definition of “Non-Hodgkin’s lymphoma” as listed in the statute can encompass a tonsillar carcinoma. However, what is or is not a “Non-Hodgkin’s lymphoma” as listed by the statute is solely a matter of statutory interpretation (i.e., what did the drafters of the statute intend that “Non-Hodgkin’s lymphoma” mean), and it is not technically an issue which is the proper subject for a medical opinion. It is a question of law. Nonetheless, the veteran should get a doctor to state that his tonsillar cancer is (or at least, can be considered as) a lymphoma not caused by Hodgkin’s Disease, and the veteran should continue to make this argument until a court of law concludes otherwise. I am aware of no case where this issue has been decided by a court decision that would constitute precedent. How does a disease get on the statutory list of diseases entitled to presumptive service connection due to herbicide exposure in Viet Nam? It is purely a matter of statistics. If data collected comes to show that Viet Nam veterans presumed to be exposed to Agent Orange and dioxin later develop a particular disease at a statistically higher rate than those in the general population, then the VA, together with the National Academy of Sciences, takes steps to include that disease on the statute’s list of diseases entitled to the presumption that it is a disease incurred or aggravated during service if manifested to the requisite degree. Based on data collected so far, cancers of the tonsil, even in Viet Nam vets, are rare and are thus, not statistically significant. That’s why they have not yet been put on the list (unless you can convince the VA that they are included as respiratory cancers or as a lymphoma). But that just means there is insufficient data at the present time to warrant specifically including tonsillar cancer as a disease entitled to the presumption of service connection, and this in no way whatsoever affects establishing direct service connection for the disease. It is a long established principle of the law of evidence that: “The absence of evidence is not evidence of absence.” In other words, just because tonsillar cancer may not be entitled to the presumption of service connection per statute because of its rarity, has no bearing at all on possibly establishing service-connection on a direct basis. Presumptive service connection and direct service connection are, in the eyes of the law, apples and oranges. In denying the claim, the VA may try to convince the veteran that a denial of service-connection on a presumptive basis somehow, by itself, also justifies denying service-connection on a direct basis. It does
  3. 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 I: Presumptive Service Connection One must first appreciate that if he served in Viet Nam during that war, the law presumes that the veteran was exposed to Agent Orange and its contaminant, dioxin (the suspected carcinogen), and that, under the law, there are two possible ways to establish that the veteran’s subsequent tonsillar cancer is “service-connected,” or medically, casually connected to Agent Orange/dioxin exposure in Nam. Service connection can be established on a presumptive basis, and/or on a direct basis. To fully promote his interests, the veteran should try to make a case for service-connection on both bases. Presumptive service connection for a disease due to Viet Nam herbicide exposure is purely statutory per 38 U.S.C. § 116. If the disease is on the statute’s list of diseases and manifest to the requisite extent, then the Viet Nam veteran is entitled to the presumption that the disease is service-connected, and if the disease is not on the list or not manifested to the requisite extent, then it is not entitled to the presumption of service-connection. “Respiratory cancers” (i.e., cancer of the lung, bronchus, larynx or trachea) are on the list and thus are presumed to be service-connected. However, cancer of the tonsil is not on the list – at least not specifically. Of course, as a matter of basic human anatomy and physiology, the air the veteran breathed while in Viet Nam which is presumed to have exposed the veteran to Agent Orange dioxin, was necessarily filtered through the veterans’ tonsils if his tonsils had not been previously removed. This basic anatomy and physiology of human respiration is an important part of the Independent Medical Opinion (IMO) the veteran will need to support his claim of service-connection, as I will discuss flater. But again, cancer of the tonsil is not expressly listed on the statutory list and it is also not a cancer of the lungs, bronchus, larynx or trachea. In both the applicable statute and VA regulations found in the Code of Regulations, it states: “Respiratory cancers ( cancer of the lungs, bronchus, larynx or trachea).” However, on the VA website’s .PDF download of this list it states: “Respiratory cancers, including cancer of the lungs, larynx, trachea and bronchus” (emphasis added). The VA’s website list is either misleading or it represents a shift in the VA’s view of respiratory cancers. In any event, the veteran should be advised that both the statute and the regulation are “the law,” and the law currently defines and clearly limits “respiratory cancers” to just those of the lungs, bronchus, larynx or trachea. However, the veteran may be able to show the VA website list language and, together with a favorable IMO on the subject, convince the VA, at least at the Regional Office level, that because tonsils filter air during respiration, they can be included as another anatomical site for a “respiratory cancer” entitled to the presumption of service-connection. <FONT size=3><FONT face="Times New Roman"> “Non-Hodgkin’s lymphoma” (i.e., lymphoma not caused by Hodgkin’s Disease), is also on the statutory list. By medical definitions, a “lymphoma” includes cancer of “lymphoid tissue,” and the tonsils are organs of lymphoid tissue. Thus, it not unreasonable to medically conclude that a liberal definition of
  4. 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 I: Presumptive Service Connection One must first appreciate that if he served in Viet Nam during that war, the law presumes that the veteran was exposed to Agent Orange and its contaminant, dioxin (the suspected carcinogen), and that, under the law, there are two possible ways to establish that the veteran’s subsequent tonsillar cancer is “service-connected,” or medically, casually connected to Agent Orange/dioxin exposure in Nam. Service connection can be established on a presumptive basis, and/or on a direct basis. To fully promote his interests, the veteran should try to make a case for service-connection on both bases. Presumptive service connection for a disease due to Viet Nam herbicide exposure is purely statutory per 38 U.S.C. § 116. If the disease is on the statute’s list of diseases and manifest to the requisite extent, then the Viet Nam veteran is entitled to the presumption that the disease is service-connected, and if the disease is not on the list or not manifested to the requisite extent, then it is not entitled to the presumption of service-connection. “Respiratory cancers” (i.e., cancer of the lung, bronchus, larynx or trachea) are on the list and thus are presumed to be service-connected. However, cancer of the tonsil is not on the list – at least not specifically. Of course, as a matter of basic human anatomy and physiology, the air the veteran breathed while in Viet Nam which is presumed to have exposed the veteran to Agent Orange dioxin, was necessarily filtered through the veterans’ tonsils if his tonsils had not been previously removed. This basic anatomy and physiology of human respiration is an important part of the Independent Medical Opinion (IMO) the veteran will need to support his claim of service-connection, as I will discuss flater. But again, cancer of the tonsil is not expressly listed on the statutory list and it is also not a cancer of the lungs, bronchus, larynx or trachea. In both the applicable statute and VA regulations found in the Code of Regulations, it states: “Respiratory cancers ( cancer of the lungs, bronchus, larynx or trachea).” However, on the VA website’s .PDF download of this list it states: “Respiratory cancers, including cancer of the lungs, larynx, trachea and bronchus” (emphasis added). The VA’s website list is either misleading or it represents a shift in the VA’s view of respiratory cancers. In any event, the veteran should be advised that both the statute and the regulation are “the law,” and the law currently defines and clearly limits “respiratory cancers” to just those of the lungs, bronchus, larynx or trachea. However, the veteran may be able to show the VA website list language and, together with a favorable IMO on the subject, convince the VA, at least at the Regional Office level, that because tonsils filter air during respiration, they can be included as another anatomical site for a “respiratory cancer” entitled to the presumption of service-connection. “Non-Hodgkin’s lymphoma” (i.e., lymphoma not caused by Hodgkin’s Disease), is also on the statutory list. By medical definitions, a “lymphoma” includes cancer of “lymphoid tissue,” and the tonsils are organs of lymphoid tissue. Thus, it not unreasonable to medically conclude that a liberal definition of “Non-Hodgkin’s lymphoma” as listed in the statute can encompass a tonsillar carcinoma. However, what is or is not a “Non-Hodgkin’s lymphoma” as listed by the statute is solely a matter of statutory interpretation (i.e., what did the drafters of the statute intend that “Non-Hodgkin’s lymphoma” mean), and it is not technically an issue which is the proper subject for a medical opinion. It is a question of law. Nonetheless, the veteran should get a doctor to state that his tonsillar cancer is (or at least, can be considered as) a lymphoma not caused by Hodgkin’s Disease, and the veteran should continue to make this argument until a court of law concludes otherwise. I am aware of no case where this issue has been decided by a court decision that would constitute precedent. How does a disease get on the statutory list of diseases entitled to presumptive service connection due to herbicide exposure in Viet Nam? It is purely a matter of statistics. If data collected comes to show that Viet Nam veterans presumed to be exposed to Agent Orange and dioxin later develop a particular disease at a statistically higher rate than those in the general population, then the VA, together with the National Academy of Sciences, takes steps to include that disease on the statute’s list of diseases entitled to the presumption that it is a disease incurred or aggravated during service if manifested to the requisite degree. Based on data collected so far, cancers of the tonsil, even in Viet Nam vets, are rare and are thus, not statistically significant. That’s why they have not yet been put on the list (unless you can convince the VA that they are included as respiratory cancers or as a lymphoma). But that just means there is insufficient data at the present time to warrant specifically including tonsillar cancer as a disease entitled to the presumption of service connection, and this in no way whatsoever affects establishing direct service connection for the disease. It is a long established principle of the law of evidence that: “The absence of evidence is not evidence of absence.” In other words, just because tonsillar cancer may not be entitled to the presumption of service connection per statute because of its rarity, has no bearing at all on possibly establishing service-connection on a direct basis. Presumptive service connection and direct service connection are, in the eyes of the law, apples and oranges. In denying the claim, the VA may try to convince the veteran that a denial of service-connection on a presumptive basis somehow, by itself, also justifies denying service-connection on a direct basis. It does
  5. 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 I: Presumptive Service Connection One must first appreciate that if he served in Viet Nam during that war, the law presumes that the veteran was exposed to Agent Orange and its contaminant, dioxin (the suspected carcinogen), and that, under the law, there are two possible ways to establish that the veteran’s subsequent tonsillar cancer is “service-connected,” or medically, casually connected to Agent Orange/dioxin exposure in Nam. Service connection can be established on a presumptive basis, and/or on a direct basis. To fully promote his interests, the veteran should try to make a case for service-connection on both bases. Presumptive service connection for a disease due to Viet Nam herbicide exposure is purely statutory per 38 U.S.C. § 116. If the disease is on the statute’s list of diseases and manifest to the requisite extent, then the Viet Nam veteran is entitled to the presumption that the disease is service-connected, and if the disease is not on the list or not manifested to the requisite extent, then it is not entitled to the presumption of service-connection. “Respiratory cancers” (i.e., cancer of the lung, bronchus, larynx or trachea) are on the list and thus are presumed to be service-connected. However, cancer of the tonsil is not on the list – at least not specifically. Of course, as a matter of basic human anatomy and physiology, the air the veteran breathed while in Viet Nam which is presumed to have exposed the veteran to Agent Orange dioxin, was necessarily filtered through the veterans’ tonsils if his tonsils had not been previously removed. This basic anatomy and physiology of human respiration is an important part of the Independent Medical Opinion (IMO) the veteran will need to support his claim of service-connection, as I will discuss flater. But again, cancer of the tonsil is not expressly listed on the statutory list and it is also not a cancer of the lungs, bronchus, larynx or trachea. In both the applicable statute and VA regulations found in the Code of Regulations, it states: “Respiratory cancers ( cancer of the lungs, bronchus, larynx or trachea).” However, on the VA website’s .PDF download of this list it states: “Respiratory cancers, including cancer of the lungs, larynx, trachea and bronchus” (emphasis added). The VA’s website list is either misleading or it represents a shift in the VA’s view of respiratory cancers. In any event, the veteran should be advised that both the statute and the regulation are “the law,” and the law currently defines and clearly limits “respiratory cancers” to just those of the lungs, bronchus, larynx or trachea. However, the veteran may be able to show the VA website list language and, together with a favorable IMO on the subject, convince the VA, at least at the Regional Office level, that because tonsils filter air during respiration, they can be included as another anatomical site for a “respiratory cancer” entitled to the presumption of service-connection. <FONT size=3><FONT face="Times New Roman"> “Non-Hodgkin’s lymphoma” (i.e., lymphoma not caused by Hodgkin’s Disease), is also on the statutory list. By medical definitions, a “lymphoma” includes cancer of “lymphoid tissue,” and the tonsils are organs of lymphoid tissue. Thus, it not unreasonable to medically conclude that a liberal definition of
  6. 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 I: Presumptive Service Connection <FONT face="Times New Roman" size=3>One must first appreciate that if he served in Viet Nam during that war, the law presumes that t
  7. Thanks for the link to the requested thread, Bob. But, I go there and try to post and it still comes back with an error that the forum is read only. So, since you guys have found my post, I'll just continue the topic of Agent Orange and tonsil cancer here. How did we eventually win the claim? Well first of all, perseverance played no small part in our nearly 16-year battle. Don't give up, guys. We eventually prevailed on the claim because after so many years of unwarranted denials and delays from the Department, we finally got the case to an independent decision maker -- The Court of Appeals for Veterans Claims. We "won" because the judge saw clearly that applying the applicable law to the "evidence of record" (i.e., the evidence in the claims file) compelled him to conclude that there was a causal nexus between the veteran's tonsil cancer (adenosquamous cell carcinoma that originated in the tonsil) and his presumed exposure to the suspected carcinogen of Agent Orange dioxin decades earlier during his two tours in Nam. I know this post doesn't give you any specifics, and that you are anxious to hear more from me. Please be patient. I am working on a "paper" which gives tips about fighting the VA over this kind of claim. I'll post it VERY soon. I promise. 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. I have more than just a passing idea of what you and your families are going through. I didn't come to this forum to solicit business. I'm here to help -- if I can.
  8. 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.
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