Citation Nr: 0003406 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-33 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for non-Hodgkin's lymphoma, to include service connection resulting from exposure to a toxic herbicide. 2. Entitlement to service connection for squamous cell carcinoma of the neck, to include service connection resulting from exposure to a toxic herbicide. REPRESENTATION Appellant represented by: Arthur T. McDermott, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from November 1954 to November 1974. This appeal arises from an April 1994 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO). In this decision, the RO denied service connection for non- Hodgkin's lymphoma and squamous cell carcinoma, to include the issue of whether these disorders were the result of the veteran's exposure to toxic herbicides. The veteran appealed these determinations. FINDINGS OF FACT 1. All evidence required for an equitable decision on the merits of the veteran's claim for service connection for squamous cell carcinoma of the neck has been obtained. 2. The veteran has never received a diagnosis for non- Hodgkin's lymphoma. He was first diagnosed with squamous cell carcinoma many years after his last period of active military service. 3. The medical opinion of May 1996 associated the veteran's squamous cell carcinoma with his respiratory system, but affirmatively found it to be the result of his use of cigarettes. 4. The medical opinion of December 1997 determined that the veteran's squamous cell carcinoma was not associated with his respiratory system. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for non-Hodgkin's lymphoma. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran did not incur squamous cell carcinoma as a result of his military service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(a) (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran was afforded an enlistment examination in November 1954. On his medical history, he denied any history of tumors or cancer. He did not report any history of respiratory problems. On examination, the veteran's lungs, chest, neck, throat, skin, and lymphatic system were all found to be normal. Similar findings were noted on comprehensive physical examinations in December 1956 and May 1957. On examination in October 1961 in preparation for the veteran undertaking missile training, his throat was noted to be abnormal. The examiner explained this finding as the result of the veteran's tonsillectomy in childhood. It was reported that this procedure had not resulted in any complications or sequelae. His lungs, chest, neck, skin, and lymphatic system were again reported to be normal. Similar findings as noted on the October 1961 examination were reported on comprehensive examinations in March 1965, October 1965, August 1966, October 1967, August 1968, June 1969, September 1970, and August 1971. The service medical records noted a diagnosis for viral upper respiratory infection in May 1963. In May 1972, the veteran was hospitalized for his neurological complaints. At the time of his admission, he was given a physical examination. This examination revealed that his neck was supple without adenopathy and his chest was clear. In preparation for a comprehensive physical examination in June 1973, the veteran reported a medical history of shortness of breath, and pain and pressure in his chest. The examining physician summarized the veteran's medical history to include an ear, nose, and throat (ENT) consultation in June 1973 that revealed a mild airway obstruction. It was reported that this disorder had no complications and no sequelae. On examination, the veteran's throat, neck, chest, lungs, skin, and lymphatic system were all normal. A separation examination was given to the veteran in April 1974. He specifically denied any medical history of shortness of breath, pain or pressure in his chest, tumors, or cancer. The examiner physician summarized the veteran's medical history to include a deviated septum which the veteran intended to have surgically corrected after his separation from the military. It was determined that this problem was not incapacitating and resulted in no complications or sequelae. On examination, the veteran's neck, throat, chest, lungs, skin, and lymphatic system were all found to be normal. A review of the veteran's service personnel records indicates that his military occupations included jet engine mechanic, missile engine mechanic, and air traffic controller. It was noted that between October 1966 and December 1967, and again from May 1969 to October 1970, the veteran was stationed in the Philippines. During the periods from late October 1966 to March 1967, and again from July to October 1967, the veteran was on temporary duty assignment to Southeast Asia. It was noted that the veteran had been in a combat environment during the Vietnam Air Offensive Campaign from October 1966 to March 1967. His service awards included the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. On a U. S. Department of Veterans Affairs (VA) compensation examination in January 1976, the veteran complained of nose, throat, and chest problems. The physical examination revealed that the veteran had small areas of vitiligo on his skin. His lymphatic system had no evidence of adenopathy. The veteran's nasal septum was deviated to the left, but his neck and respiratory system were noted as normal. A chest X- ray revealed fibronodular scarring in both apices with no definite active disease present. Another compensation examination was given to the veteran in September 1978. The examination of his respiratory system revealed normal findings. A chest X-ray reported no changes since the last X-ray taken in January 1976. There was no evidence of active disease. In November 1980, the veteran was given another compensation examination. The examiner did not note any abnormality upon examination of the veteran's skin, neck, lymphatic system, or respiratory system. A chest X-ray reported no changes. Similar findings were reported on a VA compensation examination dated in August 1982. A series of VA examinations were conducted between June and August 1980 in connection with the veteran's prior claim for service connection for a skin disorder resulting from his exposure to toxic herbicide. A physical examination of June 1980 noted that his throat and respiratory system were normal. In July 1980, the veteran was given a VA dermatology consultation. The diagnosis was vitiligo; however, the examiner opined that this disorder had not been caused by exposure to toxic herbicides. A VA ENT consultation of August 1980 was afforded to the veteran due to his complaints of sinusitis. On examination, his mouth and oropharynx were unremarkable. The impression was probable allergic or vasomotor rhinitis. By rating decision of October 1985, the RO determined that there was no objective evidence of record that would indicate that the veteran had incurred a chronic skin disorder as a result of his exposure to toxic herbicides. In November 1988, the veteran filed a claim for service connection for cancer, specifically lymphoma of the neck, as a result of exposure to toxic herbicides. He claimed that while stationed at Clark Air Force Base in the Philippines he was given numerous temporary duty assignments to Vietnam. While he acknowledged that he could not remember any specific incident of exposure to a herbicide in Vietnam, he alleged that its use was widespread and he was certain he was exposed to it. He reported that a lump first appeared on his neck in September 1988. One month later, this lump was diagnosed as cancer and removed. A VA discharge summary reported the veteran's hospitalization from November 1988 to January 1989. It was reported that a left neck mass had been determined to be squamous cell carcinoma and removed. However, the summary acknowledged that the primary tumor was never found. A chest X-ray reported no infiltrates in the lungs. The veteran underwent radiation therapy and was released. The discharge diagnoses included metastatic squamous cell carcinoma of the left neck with unknown primary. The veteran filed a claim in July 1990 for service connection for non-Hodgkin's lymphoma as a result of exposure to a toxic herbicide. By letter of August 1990, the RO informed the veteran that work on his claims for service connection resulting from exposure to a toxic herbicide were being deferred. He was told that a recent U. S. federal court decision had struck down the VA regulations regarding toxic herbicide and all such claims were on hold until new regulations could be promulgated. VA treatment records dated from 1988 to 1991 were associated with the claims file in June 1991. Multiple chest X-rays from the fall of 1988 either reported no infiltrates or no significant abnormalities. A clinical record dated in late October 1988 reported that the veteran had initially been presented with a palpable lymph node on the left neck. However, a biopsy revealed that this was in fact squamous cell carcinoma. A direct laryngoscopy and esophagoscopy were performed in October 1988 that failed to identify any cancer or tumor. A pathology report noted that multiple biopsies were taken in October 1988 of the nasopharynx, vallealar, base of tongue, left tonsil, and left neck. None of these biopsies showed evidence of a tumor, except the left tonsil which was noted to have clumps of suspicious cells and the left neck which had metastatic squamous cell carcinoma. A chest X-ray of July 1989 noted evidence of chronic obstructive pulmonary disease, bilateral upper lobe fibro- calcification and questionable old tuberculosis. A panendoscopy of August 1989 reported negative findings. On physical examination in July 1989, it was noted that the veteran was positive for soft, mobile masses in the right neck submandibular region. A VA discharge summary for a hospitalization from July to August 1989 included a diagnosis for dysphagia secondary to Candida pharyngitis. A physical examination in February 1991 reported no palpable nodules in the neck. The RO issued a rating decision in April 1994 that denied service connection for non-Hodgkin's lymphoma and squamous cell carcinoma under both direct and presumptive bases. It was determined that the veteran's service medical records did not indicate that he had suffered with either disorder during his military career. The RO found that there was no post- service medical evidence that the veteran had ever been diagnosed with non-Hodgkin's lymphoma. Finally, it was determined that the squamous cell carcinoma was first diagnosed many years after the veteran's separation from the military and was not medically linked to this service. In the veteran's notice of disagreement (NOD) received in early August 1994, the veteran argued that a 24 year period was the usual time it took to develop squamous cell carcinoma after exposure to a carcinogen. He also felt that it was "very significant" to his claim that the VA Medical Center was willing to treat this carcinoma. The veteran submitted a substantive appeal (VA Form 1-9) in late August 1994. He specifically alleged that the VA Medical Center's identification and willingness to operate on his carcinoma was recognition on the part of the VA that this cancer was the result of a service-connected illness. The veteran's representative submitted a VA Form 646 in November 1994 in which he noted that the VA Medical Center had been unable to determine the primary site of the veteran's carcinoma. It was contended that this fact and the carcinoma's immediate proximity to the lung, bronchus, larynx, and trachea, implicated that the primary site of the tumor was in the latter areas. The RO contacted the veteran by letter of August 1995 and requested that he identify all healthcare providers that had treated his claimed carcinoma. He was asked to submit signed release forms for all private healthcare givers. The veteran was informed that his failure to submit this evidence could have an adverse effect on his claims for service connection. The veteran's representative responded in late August 1995 that the veteran's only medical treatment has been conducted at his local VA Medical Center. In March 1996, the veteran's VA medical records dated from 1991 to 1996 were incorporated into his claims file. A respiratory consultation in May 1991 noted the veteran's history of neck cancer. On examination, there was no current evidence of lesion or palpable adenopathy. Similar findings were noted on consultations conducted in October 1993 and September 1995. A chest X-ray of August 1992 reported interstitial scarring extending into the upper lobes with biapical pleural thickening. In October 1993, a chest X-ray revealed perihilar and biapical scarring with no acute infiltrates. The chest X-ray of July 1994 noted that the study was unchanged since the October 1993 X-ray and there were no acute pulmonary nodules. The RO requested a medical opinion in April 1996 from a VA physician on whether it was as likely as not that the veteran's carcinoma removed in the fall of 1988 was a "respiratory cancer" or a soft-tissue sarcoma. At his hearing on appeal in March 1996, the veteran's representative argued that since the primary site of the veteran's carcinoma was not located, it should be considered a cancer of the respiratory system since this location of origin cannot be ruled out. It was argued that since this cancer was metastatic in nature, the benefit of the doubt should be given to the veteran and it be ruled a respiratory carcinoma. The veteran testified that he first noticed a lump in his neck about the size of his fingertip sometime in September 1989. The VA removed this lump and determined it was cancer. It was noted by the veteran that he subsequently had to undergo radiation therapy. He claimed that the physician that provided his radiation therapy informed him that his neck cancer had been caused by Agent Orange. However, the physician told the veteran that he could not write such an opinion for the record. He alleged that he had been unable to work since the removal of his cancer because he would "just wear out so quick." It was claimed by the veteran that his treating physicians had told him that in 95 percent of the cases like his own, they were unable to determine the primary source of the cancer. The veteran testified that during his military service from 1966 to 1969 he was sent on temporary duty assignments to Vietnam as an air traffic controller. Starting with the veteran's service in Vietnam, he claimed to have had rashes and skin discoloration. He alleged that his treating physicians had told him "it was something we don't have a name for." In April 1996, the veteran's representative submitted copies of VA medical records that had previously been obtained by the RO. The veteran was given a VA compensation examination in May 1996. On examination, there was evidence of a status post left neck dissection. No nodules were found. The assessment was status post squamous cell carcinoma in 1988 with unknown primary cause, but likely head and neck cancer given documented risk factors in prior charts of current cigarette use. A separate medical opinion was prepared by another VA physician following this examination. The RO's April 1996 request for a medical opinion was repeated verbatim in this opinion. This physician revealed that he had reviewed the examination report of May 1996 and discussed the case with the examiner. It was noted that: [The examiner] notes that the histology of the metastatic cancer is squamous cell and that the veteran has the risk factor of smoking (oddly enough veteran continues to be a smoker) thus making it highly likely that the veteran's metastatic squamous cell cancer was primary in the head or neck...[The examiner] tells me that this would definitely not have been metastatic soft tissue sarcoma base[d] on the histologic diagnosis. Tracheal cancer is very rare. But [the examiner] tells me that it is entirely possible that the primary site could have been the lung bronchus or larynx as a cancer primary in any of those sites this included in the radiation fields would have been destroyed by the radiation therapy leading to the veteran's present day status of no evidence of residual disease to date. In May 1996, the veteran's representative submitted a letter to the RO in which he contended that the VA examiner of May 1996 did not have the veteran's medical records for review nor did he understand the purpose of the examination. It was claimed that this examination was circumspect and included questions to the veteran that where irrelevant to the April 1996 medical opinion request. The RO was requested to arrange a more thorough examination for the veteran. A supplemental statement of the case (SSOC) was issued to the veteran in July 1996. Service connection for lymphoma was denied on the basis that the veteran had never received a diagnosis for this disease. Service connection for squamous cell carcinoma was denied on the basis that the medical expert's opinion linking this cancer to the veteran's respiratory system was too speculative. In July 1996, a VA respiratory consultation of June 1996 was incorporated into the claims file. On examination, there was no evidence of a current disease. A letter from the veteran's representative was received in September 1996. He contended that the language used in the examiner's opinion of May 1996 was in fact not speculative, but indicated a better than 50 percent chance the veteran's carcinoma originated in his respiratory system. Thus, the veteran was entitled to the benefit of the doubt and should be awarded service-connection. It was also argued that the examiner had opined that the VA itself had destroyed the evidence of the primary carcinoma in its radiation therapy and, therefore, the veteran should not be penalized for the VA's actions in his claim for service connection. VA medical records dated from 1987 to 1996 were associated with the claims file in November 1996. Many of these records were duplicates of previously received evidence. An outpatient record of March 1988 reported that a chest X-ray revealed no active infiltrates or disease. Another hearing on appeal was provided to the veteran in November 1997. His representative contented that the VA's radiation treatment in 1988 destroyed any evidence of the primary location of the carcinoma. It was contended that any possibility that the veteran's carcinoma was of a respiratory origin should be resolved in a favorable decision on the issue of service connection. The veteran claimed that he continued to suffer with cancer. He asserted that his lymph nodes were removed surgically in October 1989 and he has never fully recovered from this operation. However, it was acknowledged later by the veteran that his cancer was currently in remission. He claimed that he had been informed that there would always be a chance that his cancer would return. The veteran reported that the primary site of his cancer was never determined. Another VA medical opinion was received in December 1997. The physician noted that he had reviewed the veteran's medical evidence and discussed the case with another physician. He opined: The veteran had a laryngoscopy performed which did not reveal any evidence of carcinoma. Chest X-rays reveal[ed] no evidence of carcinoma either. The surgery was performed in the late '80s. If the veteran had cancer from the trachea, bronchus, or lung the veteran would not have had a curative procedure by a radical neck dissection. Therefore, it can be concluded that the cancer could not have originated from the lung, bronchus, or trachea. He had a normal laryngoscopy, which rules out the larynx as a source of his tumor as well. In a letter of April 1998, the veteran's representative contended that the original VA X-rays from the fall of 1988 were reportedly destroyed by the VA Medical Center and could not be reviewed. He also asserted that the VA physician's opinion of December 1997 was not adequate as it had not included an actual examination of the veteran and failed to opine if the veteran's squamous cell carcinoma could have originated in his larynx. A VA chest X-ray was obtained in September 1998. The impression was biapical pleural thickening which had remained unchanged since the previous examination, no acute infiltrates or nodules. A SSOC was issued to the veteran in March 1999 that informed him that his claims for service connection had again been denied. It was again determined that the veteran had never received a diagnosis for non-Hodgkin's lymphoma and, therefore, could not be granted service connection for this disorder. In September 1999, the veteran's representative submitted a VA Form 646 which noted the veteran's claim that he had been exposed to toxic herbicides during his military service in Vietnam. It was related that he felt his cancer of the "throat" had been caused by this exposure and that the primary site of this cancer was his respiratory system. The representative contended that all X-rays taken in the fall of 1988 that would establish the primary site of the veteran's cancer had been destroyed by the VA Medical Center. It was alleged that the physician's opinion of December 1997 could not be persuasive as he or she did not have access to the destroyed X-rays. Finally, the representative contended that the VA physician's opinions of May 1996 and December 1997 were patently opposed to one another on the issue of the cancer originating in the respiratory system, and this placed the evidence in equipoise. Therefore it was argued, the veteran should be granted service connection under the presumptions regarding exposure to toxic herbicides. II. Applicable Criteria. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted, in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and a malignant tumor or Hodgkin's disease becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38U.S.C.A. §§ 1101, 1112, 1113 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1999). Where a veteran served in active military service between January 9, 1962 and May 7, 1975 in the Republic of Vietnam, and non-Hodgkin's lymphoma or a soft tissue sarcoma becomes manifest to a degree of ten percent or more at any time, or a respiratory cancer becomes manifest to a degree of ten percent or more within 30 years, after the last date on which the veteran was exposed to a herbicide agent, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). These presumptions are rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d) (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam'' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (1999). In order for a claim to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of a disease or injury in service in the form of lay or medical evidence, and of a nexus between the in-service injury or disease and the current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 (1999) as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the condition noted during service is not shown to be chronic or the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997). A lay person is competent to testify only as to observable symptoms. See Savage; Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Id. Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Although the veteran is competent to testify as to his in-service experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions of medical causation will not suffice initially to establish a plausible, well- grounded claim, under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet. App. 91(1993). When after consideration of all evidence and material of record in a case before the VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991). III. Analysis The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). In other words, has the veteran presented a claim that is plausible. Regarding the veteran's claim for service connection for non- Hodgkin's lymphoma, it is the undersigned's determination that this claim is not well-grounded. A review of the evidence of record indicates that the veteran has never been diagnosed by a medical professional to have non-Hodgkin's lymphoma. Without such a diagnosis from a competent source, this claim fails to meet the first prong of either the Caluza or Savage tests. Turning to the veteran's claim for service connection for squamous cell carcinoma, the record indicates a medical opinion from a VA physician dated in May 1996 that indicated that it was "entirely possible" that this carcinoma originated in the lung, bronchus, or larynx. It is determined that this opinion is sufficient to establish a plausible claim under the Caluza test and, therefore, the claim for squamous cell carcinoma is well-grounded. In addition, the undersigned finds that the VA has conducted all development required in this case to comport with the requirements of 38 U.S.C.A. § 5107(a). This has included the gathering of all pertinent medical evidence and multiple medical opinions on the claimed disorder's etiology. It is noted by the undersigned that this claim was denied in the last SSOC on the grounds it was not well-grounded. However, the facts and development of the present case do not warrant a remand for further RO consideration. In the SSOC of May 1999, the decisionmaker thoroughly discussed all relevant medical evidence. This included a discussion weighing the probative value of pertinent medical opinions. The veteran and his representative were provided with notification of the applicable laws and regulations, to include the presumptive provisions of 38 C.F.R. §§ 3.307 & 3.309, in the SOC of August 1994 and the SSOC of March 1998. They have also been afforded not just one, but two hearings on appeal before VA Hearing Officers. They have also provided both oral and written contentions and arguments on the merits of the veteran's claim for service connection. While the Hearing Officer technically found the veteran's claim to be not well- grounded in the SSOC of March 1999, in effect, his reasons and basis included a decision on the merits of the claim for service connection. This reasoning went so far as to determine that the "preponderance of the evidence" weighed against the use of reasonable doubt under the provisions of 38 U.S.C.A. § 5107(b). As the veteran and his representative have been provided with the opportunity to present evidence and arguments on the merits of the claim for service connection, and availed themselves of those opportunities, appellate review is appropriate at this time. See Robinette v. Brown, 8 Vet. App. 65 (1995); Bernard v. Brown, 4 Vet. App. 384 (1993). Turning to the merits of the claim for service connection for squamous cell carcinoma, it is conceded by the Board that the veteran had active service which included service in Vietnam. However, a review of the service medical records and the medical evidence dated within one year of the veteran's separation from the military does not indicate any diagnosis of squamous cell carcinoma. Neither has the veteran alleged that such a cancer was diagnosed during his military service or within one year of his separation. The objective medical evidence indicates that the veteran's squamous cell carcinoma was first diagnosed in 1988, many years after his separation from the military. It was acknowledged by the veteran at his hearing in March 1996 that he first noticed a lump in his neck in late 1980's. The carcinoma removed from the veteran's neck in the fall of 1988 was not located in the respiratory system, a fact that appears to be acknowledged by the veteran and his representative. However, it has been contended that this carcinoma was not the primary tumor, that the primary tumor was located in the respiratory system, and that it was later destroyed by radiation therapy. As noted above, the veteran, as a lay person, is not competent to provide an opinion on etiology or diagnosis. There are two medical opinions of record that indicate an etiology of the veteran's squamous cell carcinoma. The first was obtained in May 1996. This opinion categorically stated that the tumor removed from the veteran's neck in the fall of 1988 was not a soft-tissue sarcoma. It did opine that the veteran's primary carcinoma possibly originated in his respiratory system and was later destroyed during radiation therapy. While the veteran's representative and the adjudicators at the RO had argued over the weight to be accorded the language used by this examiner, specifically over the use of the word "possible", the undersigned finds these contentions irrelevant to the actual import of the May 1996 opinion. While this opinion does indicate that the veteran's carcinoma may have originated in the respiratory system, it does not establish a link to the veteran's exposure to a toxic herbicide in Vietnam. In fact, it provides affirmative evidence to the contrary. The physician specifically noted the veteran's history of cigarette smoking, a history repeatedly verified in the veteran's treatment records. Based on this history, the physician thought it "highly likely" that the carcinoma originated in the head or neck and was possibly located in the respiratory system. Thus, the May 1996 opinion affirmatively associates any possibility of the veteran having respiratory cancer in 1988 with his past and continued use of cigarettes. Even the language of the May 1996 opinion does not place the evidence the examiner reviewed in equipoise. It was found that it was "highly likely" that the veteran's carcinoma in 1988 originated in the head and neck, which does not necessarily place it as a respiratory cancer. The physician then opined that it was "entirely possible" that the cancer was of respiratory origin. This terminology does not indicate that it was as likely as not a carcinoma that originated in the respiratory system. In other words, the physician failed to find that of all possible origins it was as likely from the respiratory system as any other source. In any event, this physician affirmatively associated the carcinoma with the veteran's cigarette use and not his exposure to toxic herbicides. The medical opinion of December 1997 found no evidence in the veteran's medical records that indicated the veteran had a respiratory cancer in the fall of 1988. This opinion was based on a thorough review of the contemporaneous medical evidence to include endoscopy and X-ray reports. The physician found no objective evidence, even after thorough and multiple tests, that the veteran had cancer in the respiratory system. It has been argued by the veteran's representative that this opinion is inadequate based on the facts that this examiner had not done a physical examination of the veteran and that X-rays taken in 1988 are now unavailable. As noted in the factual background, the interpretations of the veteran's X-rays, endoscopy, and laryngoscopy are of record and were reviewed by the VA physician in December 1997. An actual examination of the veteran in December 1997 would have been superfluous in connection to the opinion sought by this physician. The opinion of whether a respiratory cancer existed in 1988 could only have been determined on the contemporaneous medical evidence taken at the time. In any event, the VA physician had access to all subsequent physical examinations that the veteran had undergone to include the examination of May 1996. Therefore, the undersigned finds that this opinion was based on the veteran's entire medical history and was adequate for the purposes of determining whether a respiratory cancer existed in 1988. When comparing the two medical opinions, the undersigned finds that the December 1997 opinion to be persuasive. The latter opinion contains a thorough review and discussion of all of the pertinent medical evidence available, while the May 1996 opinion appears to be based solely on the history recited by the veteran. In addition, the May 1996 examiner merely theorized about the possibility of respiratory cancer existing in the fall of 1988, while the December 1997 opinion discussed in the detail the objective test findings and surgical procedure. Based on the above analysis, the undersigned finds that the claim for service connection for non-Hodgkin's lymphoma is not well-grounded. It is also determined that the preponderance of the evidence is against the grant of service connection for squamous cell carcinoma, even when considering the presumptions granted under the provisions of 38 C.F.R. § 3.307 and 3.309. ORDER Evidence of a well-grounded claim not having been submitted with respect to the issue of service connection for non- Hodgkin's lymphoma, this appeal is denied. Service connection for squamous cell carcinoma is denied. D. C. Spickler Member, Board of Veterans' Appeals