Veteranclaims’s Blog

June 10, 2011

Single Judge Application, Hillyard 1 Vet.App.; Medical Treatise

Filed under: Uncategorized — Tags: — veteranclaims @ 8:14 pm

Excerpt from decision below:
“Thus, in not a single one of these cases does the Board grant presumptive service connection for a squamous cell carcinoma, or construe such a condition as a “respiratory cancer.” The Board did not err when it concluded that these decisions could be distinguished from the present case. See 38 C.F.R. § 20.1303 (Board decisions are not binding on the Board); see also Hillyard v. Derwinski, 1 Vet.App. 349, 351 (1991) (Board decisions are not precedential and are binding only with regard to specific case addressed in each decision.)
============================

“It is true that information from a medical treatise may provide evidence to support a claim for benefits when coupled with the opinion of a medical professional, but to be probative, the information must be specific and conclusive. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (general and inconclusive
information is likely to make a causal connection seem plausible, based on the “instinctive inference of a layperson” as opposed to the trained opinion of a medical professional).”

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0695
CHARLES L. FORAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The pro se appellant, Charles L. Foran appeals an October 31,
2008, Board
of Veterans’ Appeals (Board) decision that denied his claim for squamous
cell carcinoma of the right
oropharynx,1
including as secondary to exposure to herbicides. Record (R.) at 3-16.
Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. For
the reasons that follow, the Court will affirm the October 31, 2008,
decision.
I. FACTS
The appellant served in the U.S. Army from June 1968 to November 1969,
including service
in Vietnam. R. at 429. His separation examination was normal as to his
mouth, throat, and nose.
R. at 429.
In September 1998, almost 30 years after his separation from service, the
appellant was
diagnosed with squamous cell carcinoma of the right oropharynx with
metastasis to the lymph
The oropharynx is “the division of the pharynx lying between the soft
palate and the upper edge of
the epiglottis.” DORLAND’SILLUSTRATEDMEDICALDICTIONARY1358, 1409 (31st ed.
2007). The documents
in the record refer to the appellant’s carcinoma as cancer of the
oropharynx, cancer of the pharynx, and cancer
of the tonsil.
1

nodes, requiring a right tonsillectomy and laryngoscopy. R. at 354, 385-
86. In January 1999, the
appellant underwent a radical right modified neck dissection with complete
lymphadenectomy. R.
at 402-06. In regard to his larynx, the report noted: “No evidence of
lesions . . . normal cord and
arytenoid mobility. No dysfunctional characteristic of the larynx.” R. at
403. In February 1999,
a clinical note reported a diagnosis of squamous cell carcinoma of the
right tonsil and a history of
tobacco use noted as 60 packs of cigarettes per year. R. at 391-92. An
April 1999 clinical report
noted the September 1998 tonsillectomy and a history of smoking 2 packs of
cigarettes per day for
20 years. R. at 387-89. Later records indicate that, as of October 1999,
the appellant had cut down
his smoking to three to four cigarettes per day. R. at 376. In January
2001, the appellant filed a
claim for service connection for “respiratory cancer resulting from Agent
Orange exposure while
on active duty in Vietnam.” R. at 350-53. He attached a December 2000
statement from his private
oncologist, Dr. Richard L. Scher, who opined that the appellant’s cancer
of the oropharynx “fits
within the criteria of diseases currently recognized by the VA Medical
System as related to
herbacide [sic] exposure including respiratory cancers with this cancer
being part of the pharyngeal
system.” R. at 354-55.
InSeptember2001,VAdeniedtheappellant’s claimfor service connection for
squamous cell
carcinoma, claimed as respiratory cancer. R. at 340-45. The rating
decision explained that service
connection on a direct basis was denied because “there is no evidence of
this condition shown while
on active duty nor was it shown to a compensable degree within one year
from the date of discharge
from service.” R. at 343. Service connection on a presumptive basis, due
to exposure to Agent
Orange, was denied because the presumption applies to “[respiratory]
cancers of the lung, bronchus,
larynx and trachea” but cancer of the oropharynx “has not been shown to be
associated with
herbicide exposure.” R. at 343.
In October 2002,2
a VA physician indicated that he had reviewed the medical evidence of
record and opined that the appellant did not have a respiratory cancer or
cancer involving the larynx.
R. at 330. He noted that the primary cancer involved the right tonsil and
that previous medical
findings in 1998 and 1999 indicated the appellant’s larynx was normal. R.
at 330.
The Court notes that both the Board decision and the Secretary’s brief
describe this document as
being dated October 1, 2001, but there is no such document in the record
of proceedings dated October 1,
2001, and a review of the record of proceedings indicates that October 1,
2002, is the correct date.
2
2

In August 2003, the appellant testified at a Board hearing that he
believed that his squamous
cell carcinoma of the right oropharynx should be considered part of the
respiratory system. R. at
224-47. He also submitted information from the Merck manual, a widely
accepted general medical
text, that included references to “somal cell carcinoma of the tonsil” as
being a “malignanc[y] of the
upper respiratory tract.” R. at 239. Finally, he submitted a copy of a
Board decision granting
another veteran’s claimfor service connection for squamous cell carcinoma
at the base of the tongue,
as a result of herbicide exposure. R. 254-61.
In June 2004, the Board requested an oncologist’s opinion as to whether
the appellant’s
condition was a respiratory cancer, which would establish a claim for
presumptive service
connection, and whether the condition could be caused by exposure to Agent
Orange, which would
support a claim for direct service connection. R. at 163. In July 2004, VA
physician Michael A.
Doukas, the Chief of Hematology and Oncology Section at Lexington VA
Medical Center, provided
a medical opinion. R. at 204-05. Dr. Doukas stated that he was not
qualified to opine on the issue
of direct service connection, because “whether Agent Orange exposure is a
cause of
nasopharhyngeal cancer [was] outside of [his] professional realm.” R. at
204. In regard to
presumptive service connection, Dr. Doukas opined that “[t]he veteran’s
cancer is not a cancer of
the lungs, bronchus, larynx, or trachea” and that it is “a cancer of the
nasopharyngeal tissues.” R.
at 204. The rationale he provided in support of his opinion was based on
the difference between the
type of tissue in each area: “all of the areas listed [in the VA
regulations creating a presumption of
service connection] are below the level of the vocal cords, i.e. in areas
exclusively lined by
respiratory columnar epithelium. Above the vocal cords, the nasopharynx is
lined by squamous
epithelia.” R. at 204. In August 2005, the Board denied the claim. R. at
177-89.
In August 2007, this Court remanded the claim, concluding that VA had
provided an
inadequate medical opinion. R. at 161-67. The Court stated that, although
Dr. Doukas had provided
an adequate opinion in regard to presumptive service connection and
whether the appellant’s
condition should be considered a “respiratory cancer,” he had failed to
provide an opinion on
whether Agent Orange could have directly caused the appellant’s cancer. R.
at 166.
In July 2008, pursuant to the Court’s remand, VA obtained an expert
medical opinion on the
question of direct service connection from Dr. Keith Blackwell, a head and
neck surgery specialist.
R. at 101-02. Dr. Blackwell was asked to opine as to whether the
appellant’s “right oropharyngeal
3

cancer is causally related to his active duty military service, including
his exposure to herbicide
agents in Vietnam.” R. at 101-02. Dr. Blackwell ultimately concluded that
the appellant’s cancer
had been caused by his significant history of cigarette smoking and
alcohol consumption. R. at 102.
As to whether Agent Orange might have caused the appellant’s cancer, Dr.
Blackwell reviewed the
medical literature on the topic and concluded that, although there was
evidence supporting a causal
relationship between Agent Orange and certain other types of cancer, the
material he reviewed
“concluded that there is insufficient evidence in the medical literature
to draw any conclusion
between Agent Orange exposure and the development of nasopharyngeal cancer.
To the best of my
knowledge, there are no published studies that analyzed the potential
relationship between Agent
Orange exposure and the development of oropharyngeal cancer.” R. at 102.
Based on the two
proven risk factors, smoking and drinking, in addition to the Agent Orange
study, Dr. Blackwell
concluded that it was “improbable” that the appellant’s oropharyngeal
cancer was causally related
to herbicide exposure in Vietnam. R. at 102.
Later that month, the appellant submitted a private medical opinion from
his oncologist, Dr.
David M. Brizel, Professor of Radiation Oncology and Associate Professor
of Otolaryngology Head
and Neck Surgery at Duke University Medical Center. R. at 28. Dr. Brizel
stated:
It is my understanding that [the appellant] is a Vietnam War veteran who
was
exposed to Agent Orange and/or other herbicides during his period of
service there.
It is my understanding that carcinomas of the respiratory system are
categorized as
service connected for those veterans who had such exposures. The tonsil is
part of
that system, in fact, the tonsil and all of the mucosa of the pharynx
itself is referred
to as part of the upper aero-digestive tract. The term aero is an obvious
synonym for
a portion of the respiratory tract. Therefore, I would ask that you
provide him with
appropriate service connected status and benefits.
R. at 28.
In October 2008, the appellant submitted medical treatise evidence
addressing the function
of the respiratory system. R. at 68-77. Later that year, the appellant
submitted several Board
decisions where entitlement to service connection for squamous cell
carcinoma had been granted;
in some cases, claimed as due to Agent Orange exposure. R. at 29-61.
On August 31, 2008, the Board issued the decision on appeal. R. at 3-16.
The Board found
that the appellant had presumptive exposure to Agent Orange due to his
service in Vietnam, but that
squamous cell carcinoma of the right tonsil was not manifested during his
active duty service or for
4

many years thereafter, nor was it otherwise related to his active duty
service, including exposure to
herbicides. R. at 4. Accordingly, the Board denied his claim. R. at 16.
II. ANALYSIS
A. Adequacy of July 2004 Medical Opinion
The appellant argues that the July 2004 medical opinion is inadequate
because “Stefl [v.
Nicholson, 21 Vet.App. 120 (2007)] requires that medical opinions
regarding service connection
address both presumptive and direct service connection.” Appellant’s Reply
Brief (Br.) at 7. VA
must assist the veteran by obtaining a medical opinion that is “adequate
for rating purposes” when
it is “necessary to make a decision on [a veteran’s] claim.” 38 U.S.C. §
5103A(d); Stegall v. West,
11 Vet.App. 268, 270-71 (1998); 38 C.F.R. § 4.2 (2010). “An opinion is
adequate where it is based
upon consideration of the veteran’s prior medical history and examinations
and also describes the
disability, if any, in sufficient detail so that the Board’s ‘evaluation
of the claimed disability will be
a fully informed one.'” Stefl, 21 Vet.App. at 123 (quoting Ardison v.
Brown, 6 Vet.App. 405, 407
(1994)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991).
Service connection can be established directly with medical evidence of a
nexus between a
condition and an injury or disease in service or, in some instances, can
be established by a
presumption that certain conditions are related to certain types of
service. 38 U.S.C. § 1116(b)(1);
Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.
309(e) (2010). When
presumptive service connection is an issue, VA has failed in its duty to
assist a veteran in developing
his claimwhen the record contains medical evidence that is probative onthe
question of presumptive
service connection, but does not also address direct service connection.
Stefl, 21 Vet.App. at 123
(nexus opinion was inadequate when physician mistakenly assumed veteran’s
condition could not
be service connected because it was not on list of conditions for which
presumptive service
connection was available); Ardison, 6 Vet.App. at 407. Such a medical
opinion is inadequate
because it does not provide the Board, as finder of fact, with sufficient
information to decide the
veteran’s claim. See Ardison and Green, both supra.
In this case, VA initially requested a medical opinion as to whether the
appellant’s
oropharyngeal cancer was a “respiratory cancer” such that it would be
covered under the
presumption of § 3.309. R. at 163. In July 2004, VA provided an adequate
medical opinion as to
5

the issues underlying presumptive service connection, but the physician
was unable to provide an
opinion in regard to direct service connection. R. at 204. In 2007, the
Court remanded the
appellant’s claimbecause the Board had clearly
erredwhenitadjudicatedtheclaimwithoutevidence
on the question of direct service connection. R. at 161-67. After the
claim was remanded, VA
arranged for another VA physician to provide a medical nexus opinion in
regard to direct service
connection. R. at 101-02. Thus, in the decision on appeal, the record
before the Board contained
adequate evidence on both direct service connection and presumptive
service connection. Although
the record must contain sufficient medical evidence that the Board’s ”
evaluation of the claimed
disability will be a fully informed one,” Stefl, 21 Vet.App. at 123, there
is no requirement that all
the medical evidence be provided by the same examiner or in the same
opinion. See Ardison and
Green, both supra. Therefore, the inadequacies identified by the Court in
its August 2007 decision
to remand this case have been cured now that VA has provided the Board
with probative medical
evidence in regard to both direct and presumptive service connection.
B. Adequacy of July 2008 VA Medical Opinion
The appellant also argues that a July 2008 expert medical opinion by Dr.
Keith Blackwell
is inadequate because it was based on “already conceded” information found
on the internet and for
the use of the term “improbable” in his conclusion. Appellant’s Br. at 1.
The Court disagrees.
An adequate medical opinion must be “accurate and fully descriptive . . .
with emphasis upon
the limitation of activity imposed by the disabling condition.” 38 C.F.R. §
4.1 (2010). In addition,
the medical opinion “must support its conclusions with an analysis that
the Board can consider and
weigh against contrary opinions.” Stefl, 21 Vet.App. at 124; see Nieves-
Rodriguez v. Peake,
22 Vet.App. 295, 304 (2008) (“most of the probative value of a medical
opinion comes from its
reasoning”); see also Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (
inadequate medical evaluation
frustrates judicial review).
In this case, Dr. Blackwell expressly stated that he reviewed the
appellant’s legal documents
and medical records and also that he reviewed the medical literature on
the topic. R. at 101. He
summarized the appellant’s history, including his military service, and
his potential risk factors for
oropharyngeal cancer, including his presumed exposure to Agent Orange and
his known history of
significant cigarette smoking and alcohol consumption. R. at 101. He
provided a rationale for his
opinion: that the appellant had two proven risk factors for developing
oropharyngeal cancer and that
6

the medical literature did not support a causal connection between
oropharyngeal cancer and
exposure to Agent Orange. R. at 102. Thus, the Court concludes that the
medical opinion was not
inadequate and that it was not error for the Board to rely on it. See
Nieves-Rodriguez, Stefl, and
Ardison, all supra.
C. Adequacy of October 2002 VA Medical Opinion
The appellant also argues that the October 1, 2002, VA opinion is
inadequate because it is
a “cursory, handwritten paragraph on a Medical Opinion Request Worksheet”
and the doctor’s name
is not legible. Appellant’s Reply Br. at 8. First, the Court notes that
the appellant is raising this
issue for the first time in his reply brief and thus the Court is under no
obligation to consider it.
Henderson v. West, 12 Vet.App. 11, 18-19 (1998) (argument raised for the
first time in appellant’s
reply brief is considered abandoned). Second, the medical opinion in
question was already in the
record when this case was previously before the Court, and the appellant
never raised this issue,
despite being represented by counsel at that time. R. at 161-67. See
Johnson v. Brown, 7 Vet.App.
25, 26 (1994) (“Where a case is addressed by an appellate court, remanded,
then returned to the
appellate court, the ‘law of the case’ doctrine operates to preclude
reconsideration of identical
issues.”); Browder v. Brown, 5 Vet.App. 268, 270 (1993) (“Under the
doctrine of ‘law of the case,’
questions settled on a former appeal of the same case are no longer open
for review.”).
Despite these procedural defects, even if the Court were to consider this
argument, it would
conclude that, although this medical opinion is not a model of clarity, it
was not clearly erroneous
for the Board to consider it. See D’Aries v. Peake, 22 Vet. App. 97, 104 (
2008) (whether medical
opinion is adequate is a finding of fact, reviewed under the “clearly
erroneous” standard). The
medical opinion states: “The MER [(medical evidence of record)] indicates
the veteran does not
have a respiratory cancer, or cancer involving (due to herbicides) the
larynx. (primary cancer of right
tonsil 9-24-98, 12-17-99 larynx ok[ay] . . . .)” R. at 330. The physician
clearly reviewed the medical
evidence of record and then provided an opinion that the appellant’s
cancer should not be considered
a respiratory cancer because it did not involve the larynx, but rather,
the right tonsil, as reported in
the original diagnosis of oropharyngeal cancer in September 1998. R. at
354, 385-86. He also
referred to the December 1999 medical report provided after the
appellant’s surgery, that indicated
7

the larynx was “ok.”3
R. at 330. Therefore, the October 2002 medical opinion was supported by an
adequate rationale, and the Court concludes that it was not clearly
erroneous for the Board to
consider it.
D. Service Connection for Oropharyngeal Cancer
For veterans who served in Vietnam, service connection is available for
certain listed
conditions without the veteran having to show a nexus between service and
the condition–the
veterans are presumed to have been exposed to herbicides, including Agent
Orange, and the listed
conditions are “presumptively” service connected. 38 U.S.C. § 1116(b)(1);
38 C.F.R. § 3.309(e)
(listing conditions associated with herbicides for which presumptive
service connection is available,
including “[r]espiratory cancers (cancer of the lung, bronchus, larynx, or
trachea)”). However, VA
has also established that conditions that are not on the list are
expressly not entitled to a presumption
of service connection. 68 Fed.Reg. 27,630 (May 20, 2003). After working
with the National
Academy of Sciences to review scientific evidence on the association
between exposure to
herbicides and various diseases, the Board explicitly concluded that “the
credible evidence against
an association between herbicide exposure and oral, nasal, and pharyngeal
cancers outweighs the
credible evidence for such an association . . . . [A] positive association
does not exist.” R. at 7.
In this case, the appellant has been diagnosed with cancer of the right
oropharynx. R. at 354,
385-86. The Board weighed the evidence of record and concluded that cancer
of the oropharynx can
not be considered a “cancer of the lung, bronchus, larynx, or trachea.”
The appellant may disagree
with the Board’s weighing of the relevant evidence, but such weighing is
well within the Board’s
purview as finder of fact. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed.
Cir. 1997) (Board’s duty
is “to analyze the credibility and probative value of evidence”); Owens v.
Brown, 7 Vet.App. 429,
433 (1995) (Board may favor one competent medical opinion over another as
long as it provides an
adequate statement of reasons or bases). Therefore, the Court concludes
that the Board’s denial of
service connection is not clearly erroneous.
3
The December 1999 medical report is not contained in the record of
proceedings before the Court;
however, the Court notes that an October 1999 radiation oncology follow-up
report that is in the record states
that “[f]iberoptic laryngoscopy reveals a normal nasopharynx, oropharynx,
hypopharynx, and larynx.” R.
at 376. Therefore, the record is consistent with the October 2002 medical
opinion, and the Court has no
reason to doubt the accuracy of that opinion’s factual premise. See
Ardison, 6 Vet.App. at 407 (medical
opinion must be based on an accurate factual premise).
8

E. Lay Testimony
The appellant argues that the Board should have assigned more weight to
his lay testimony
that he believes his exposure to herbicides may have caused or exacerbated
his oropharyngeal
cancer. Appellant’s Br. at 2. Alternatively, he has argued that, because
some forms of lymphoma
are on the list of presumptively service-connected conditions, his
oropharyngeal cancer should be
considered a lymphoma. The Court disagrees with both arguments.
Although lay evidence may be competent to identify observable conditions
such as a broken
leg, cancer has been specifically identified as an example of a condition
that requires medical
training to identify and assess. Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009);
Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007). In
this case, the Board
dismissed the appellant’s contentions that his cancer is related to
herbicide exposure because the
Board properly found that the appellant is not competent to provide such a
medical opinion. R. at
14-15. The Court concludes that the Board did not err when it found that
the appellant was not
competent to diagnose or opine on the causation of his cancer, or to
conclude that his oropharyngeal
cancer is medically equivalent to lymphoma for the purpose of presumptive
service connection.
F. Errors and Prejudice
The appellant argues that he has been prejudiced by certain errors of
record, such as the
Secretary’s erroneous statement that “in May 2003, the Board granted
Appellant entitlement to
presumptive service connection for squamous cell carcinoma at the base of
the tongue. R. at 254-
261.” Appellant’s Reply Br. at 9, citing Secretary’s Br. at 4. The Court
notes that the pages cited
by the Secretary actually refer to a Board decision for another veteran,
that was submitted by the
appellant to support his argument that VA does grant service connection
for squamous cell
carcinoma claimed as due to Agent Orange. R. at 254-61; see also R. at 40-
45 (duplicating the
Board decision in the record at 254-61, but in a different print format).
The Court assures the
appellant that the Secretary’s misstatement in this regard, and the
Secretary’s reference to other
evidence having been submitted in “August 2008” instead of September 19,
2008, have been noted
as errors, and that these minor technical errors have not prejudiced the
appellant’s claim. See
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (“We
have also come a
long way from the time when all . . . error was presumed prejudicial and
reviewing courts were
considered’citadelsoftechnicality.'”(quoting Kotteakosv.UnitedStates, 328
U.S. 750, 759 (1946)).
9

G. Other Board Decisions
The appellant submitted five other Board decisions, apparently as evidence
that VA does,
in fact, grant presumptive service connection for squamous cell carcinomas
that are not “respiratory
cancers,” or as evidence that VA may construe certain types of cancer as ”
respiratory cancers” and
thus grant presumptive service connection in those cases. R. at 29-60, 254-
62.4
The Court has
reviewed each of these decisions carefully and is compelled to agree with
the Board that these cases
are distinguishable from the appellant’s claim and are, therefore, not
evidence of inconsistent
decisions by VA. R. at 16.
In regard to the November 4, 2005, Board decision granting service
connection for the
appellant’s death from metastatic squamous cell cancer of the head and
neck, claimed as due to
Agent Orange exposure, the Board found that “the medical evidence shows
that the veteran’s cancer
originated in the larynx.” R. at 46-52. Therefore, presumptive service
connection was available
because the larynx is expressly included in the list of “respiratory
cancers” under 38 C.F.R.
§ 3.309(e). Likewise, in regard to the October 8, 1998, Board decision
granting service connection
for squamous cell carcinoma of the tongue, claimed as due to exposure to
Agent Orange, the Board
relied on medical evidence that the primary site of the veteran’s cancer
was actually the larynx and
not the tongue. R. at 35-39. In regard to the May 6, 2003, Board decision
granting service
connection for squamous cell carcinoma at the base of the tongue, this
claim was granted on a theory
of direct service connection, not presumptive service connection. R. at 40-
44, 254-62. Unlike the
appellant, the veteran in that case had no risk factors for squamous cell
carcinoma other than
exposure to Agent Orange, and the Board relied on several positive medical
nexus opinions to grant
service connection on a theory of direct causation. R. at 44.
In regard to the April 25, 1997, Board decision on a claim for service
connection for
residuals of exposure to Agent Orange, claimed as pharyngeal (throat)
cancer, the Board concluded
that “neither pharyngeal cancer nor oral cancer qualifies for presumptive
service connection . . . [but]
this does not preclude the veteran from proving actual direct causation.”
R. at 54. The Board did
The Court notes that two of the seven Board decisions in the record are
duplicates. R. at 40-44, 254-
62 (both reporting the same May 6, 2003, Board decision on squamous cell
carcinoma at the base of the
tongue) and R. at 29-34, 46-52 (both reporting the same November 4, 2005,
Board decision granting service
connection for the appellant’s death, claimed as due to Agent Orange
exposure).
4
10

not grant service connection, but only remanded the claim so that VA
could assess whether the
veteran in that case could provide evidence supporting service connection
under a theory of direct causation. R. at 53-55. Finally, in regard to the March 14, 2003, Board decision granting service connection for left maxillary squamous cell carcinoma, the Board found that there was evidence to support granting service connection, but explicitly noted that “service connection is granted on a direct basis rather than on a presumptive basis.” R. at 56-60. Thus, in not a single one of these cases does the Board grant presumptive service connection for a squamous cell carcinoma, or construe such a condition as a “respiratory cancer.” The Board did not err when it concluded that these decisions could be distinguished from the present case. See 38 C.F.R. § 20.1303 (Board decisions are not binding on the Board); see also Hillyard v. Derwinski, 1 Vet.App. 349, 351 (1991) (Board decisions are not precedential and are binding only with regard to specific case addressed in each decision.)

H. Medical Treatise Evidence
At his Board hearing, the appellant submitted information from the Merck manual, a widely accepted general medical text, that included references to “somal cell carcinoma of the tonsil” as being a “malignanc[y] of the upper respiratory tract.” R. at 239. It is true that information from a medical treatise may provide evidence to support a claim for benefits when coupled with the opinion of a medical professional, but to be probative, the information must be specific and conclusive. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (general and inconclusive information is likely to make a causal connection seem plausible, based on the “instinctive inference of a layperson” as opposed to the trained opinion of a medical professional).
In this case, VA has specifically defined the conditions that are eligible for presumptive service connection as “cancer of the lung, bronchus, larynx, or trachea” and has also stated that conditions not listed are expressly not eligible for presumptive service connection. 38 C.F.R. § 3.309(e). Therefore, the fact that a medical treatise refers to oropharyngeal cancer as being a cancer “of the upper respiratory tract” is not dispositive of whether a particular type of cancer meets the legal criteria for presumptive service connection established by VA.

I. Benefit of the Doubt
Finally, the appellant argues that the benefit of the doubt doctrine
should have been applied
to grant his claim. Appellant’s Br. at 2. A claimant will be given the
benefit of the doubt and will
11

prevail when the evidence is in “relative equipoise,” and the claim will
be denied only if “a fair
preponderance of the evidence is against the claim.” 38 U.S.C. § 5107(b);
Gilbert v. Derwinski,
1 Vet.App. 49, 55-56 (1990). However, the doctrine only applies when the
evidence is in equipoise
and, in this case, the Board found that the preponderance of the competent
evidence was against the
claim, therefore the doctrine does not apply. R. at 16.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s October 31, 2008, decision is AFFIRMED.
DATED: June 2, 2011
Copies to:
Charles L. Foran
VA General Counsel (027)
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