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 and have a diseases listed at 38 C.F.R. § 3.309(e). Veterans that qualify for the presumption who subsequently develop one of the fifteen conditions to include Agent Orange prostate cancer, and a list of respiratory cancers, such as cancers of the lung, bronchus, larynx, or trachea, are eligible to receive service connected compensation benefits. Cancer cases involving the respiratory system are very difficult to evaluate because of the juxtaposition of body parts that are presumed to be service connected and those that are not. For the cancers mentioned above, in order for the presumption to apply, the cancer must be a primary cancer. This means that the origin of the cancer has to have risen in the lung, bronchus, larynx or trachea. It cannot be a secondary cancer, or metastasized tumor. Metastasis is defined as the transfer of disease from one organ or part to another not directly connected with it. This is because presumptive service connection is available for certain cancers due to herbicides, such as Agent Orange, only where intercurrent cause cannot be shown. For example, lung cancer that was metastasized from the soft palate (back of the roof of the mouth) is not entitled to presumptive service connection simply because the lung cancer was caused by metastasis of the primary cancer and the primary cancer is not listed in the regulation. Therefore, whether the site or sites of the primary cancer lesion is listed in the regulation becomes most important in the case.
At first glance, the respiratory system and its structures seem simple to a lay person. A veteran may tell you that they have cancer of the head and neck and without reviewing the veteran’s oncology records you will not have a sense of whether it is one that is on the presumptive list. Even after your review of the treatment records, it is likely that you will need an expert opinion to clarify the ‘primary cancer’ site.
As an example, a veteran was found to have a cancerous mass in the region of the tonsils and pharynx (see diagram). Treatment records described the cancerous mass as ‘involving the right tonsil beginning at the level of the soft palate and nasopharynx extending down to the oropharynx and hypopharynx. It was also noted that the mass had ‘infiltrated’ through the pharyngeal wall into the larynx. The veteran was diagnosed with stage IV tonsillar cancer.
Based on his diagnoses, the veteran filed a claim for service connection based on Agent Orange exposure. His claim was denied because the origin of the primary cancer site was not one of those listed in the regulation – lung, bronchus, larynx, and trachea. The tonsils are considered to be part of the nasopharynx structures. The VA has stated that nasopharyngeal cancer is not associated with in-service exposure to herbicides. In this case, there was evidence to conclude that the veteran’s cancer originated in the right tonsil and then infiltrated into adjacent areas before metastasizing to other areas.
This was a very complicated case, and most respiratory cancer cases that do not directly involve the lung, bronchus, larynx or trachea will require special attention and several medical opinions to determine the primary site of the cancer. In this particular case, an ear, nose and throat oncologist opined that the primary site of the veteran’s cancer was most likely the oropharynx, and that, Agent Orange likely caused the veteran’s oropharynx cancer because adjacent mucosal surfaces had documented suggestive evidence of an association between Agent Orange and carcinoma. Simply put, the epithelium surface that we all have in our nasal cavity exists in our oral cavity and is a continuation throughout our entire nasopharynx-oropharynx-larynx and lungs. Further, the veteran’s cancer was found to have ‘infiltrated’ the larynx before it metastasized into other areas.
Just by visual analysis, it would appear that the nasopharynx and the oropharynx were exposed to the same airborne and water born toxins of the environment, such as Agent Orange, as the larynx and trachea. But, until the VA changes this regulation, veterans have to go through hoops and bounds to prove service connection for respiratory cancer associated with Agent Orange.
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