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.

[evandc]

DISEASES RECOGNIZED BY THE VA AS CONNECTED TO AGENT ORANGE EXPOSURE LENGTH OF TIME REQUIREMENTS: WHEN SYMPTOMS OF THE DISEASE HAVE TO APPEAR AND RESULT IN A DISABILITY (AT LEAST 10 PERCENT DISABLING) IN ORDER TO QUALIFY FOR BENEFITS.

TYPES OF CANCER / TIME REQUIREMENT

Cancer of the Bronchus No time requirement (veteran qualifies no matter when the disease first appears.)

Cancer of the Larnyx No time requirement (veteran qualifies no matter when the disease first appears.)

Lung Cancer No time requirement (veteran qualifies no matter when the disease first appears.)

Cancer of the Trachea No time requirement (veteran qualifies no matter when the disease first appears.)

Prostate Cancer No time requirement (veteran qualifies no matter when the disease first appears.)

Hodgkin's Disease No time requirement (veteran qualifies no matter when the disease first appears.)

Chronic Lymphatic Leukemia No time requirement (veteran qualifies no matter when the disease first appears.)

Multiple Myeloma No time requirement (veteran qualifies no matter when the disease first appears.)

Non-Hodgkin's Lymphoma No time requirement (veteran qualifies no matter when the disease first appears.)

TYPES OF SOFT TISSUE SARCOMA TIME REQUIREMENT

Adult Fibrosarcoma

Alveolar Soft Part Sarcoma

Angiosarcoma

Clear Cell Sarcoma of Aponeuroses

Clear Cell Sarcoma of Tendons

Congenital Fibrosarcoma

Dermatofibrosarcoma Protuberans

Ectomesenchymoma

Epithelioid Malignant Leiomyosarcoma

Epithelioid Malignant Schwannoma

Epithelioid Sarcoma

Extraskeltal Ewing's Sarcoma

Hemangiosarcoma

Infantile Fibrosarcoma

Leiomyosarcoma

Liposarcoma

Lymphangiosarcoma

Malignant Fibrous Histiocytoma

Malignant ganglioneuroma

Malignant Giant Cell Tumor of the Tendon

Sheath

Malignant Glandular Schwannoma

Malignant Glomus Tumor

Malignant granular cell tumor

Malignant Hemangiopericytoma

Malignant Mesenchymoma

Malignant Schwannoma with Rhabdomyoblastic differentiation

Prolifertationg (systemic)Angiendotheliomatosis

Rhabdomyosarcoma

Synovial Sarcoma No Time Requirement

(veteran qualifies no matter when sarcoma first appears)

DISEASES OTHER THAN CANCER TIME REQUIREMENT

Peripheral Neuropathy (acute or subacute)

Within months of exposure to agent orange in Vietnam and cured within 2 years after symptoms first appear

(Note: this time requirement is written so narrowly it appears to be impossible for any Vietnam veteran to qualify)

Chloracne Within one year of the last day the veteran served in Vietnam.

Porphyria Cutanea Tarda Within one year of the last day the veteran served in Vietnam.

Diabetes

Complications:

Skin Conditions:

diabetic dermopathy

necrobiosis lipoidica

diabeticorum

diabetic blisters

eruptive xanthomatosis

Gum Disease:

Oral Infection

Fungal Infection

Poor Healing

Dry Mouth

Eye Disease:

Blindness

Retinopathy

Glaucoma

Cataracts

Kidney Disease

Transplantation:

Kidney

Pancreas

Neuropathy:

Charcot’s joint

Cranial neuropathy

Autonomic neuropathy

Compression mononeuropathy

Femoral neuropathy

Thoracic or lumbar radiculopathy

Unilateral foot drop

Cardiovascular Health:

Heart Attack

Stroke

No Time Requirement

(veteran qualifies no matter when Diabetes first appears)

[Lawyer4Vet]

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

[Lawyer4Vet]

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

[Lawyer4Vet]

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

[Lawyer4Vet]

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

[Lawyer4Vet]

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