Citation Nr: 0304776 Decision Date: 03/14/03 Archive Date: 03/24/03 DOCKET NO. 02-20 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for left maxillary squamous cell carcinoma. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. M. Davis INTRODUCTION The veteran served on active duty from April 1964 to April 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2000 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The RO denied service connection for residuals of left maxillary squamous cell carcinoma with erosion to base of skull. FINDINGS OF FACT 1. The veteran has a current disability of left maxillary squamous cell carcinoma. 2. The veteran was exposed to an herbicide agent while serving in Vietnam. 3. Competent evidence of a nexus between left maxillary squamous cell carcinoma and service is of record. CONCLUSION OF LAW Left maxillary squamous cell carcinoma was incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.313 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Board notes that it is granting the veteran's claim for service connection and need not address the requirements of the VCAA. II. Factual Background The veteran's Form DD-214 indicated that he was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Republic of Vietnam Campaign Medal, and that he served on the U.S.S. Canberra. The Form also showed that the veteran served in foreign and/or sea service for 2 years, 8 months, and 9 days. A service record dated April 1967 indicated that the veteran was authorized to wear the Vietnam Service Medal/Ribbon for service in the Vietnam area of operations, and was authorized to wear the Republic of Vietnam Campaign Medal/Ribbon for service in the Vietnam area of operations from November to April 1967. A January 1998 VA treatment report indicated that the veteran had a history of head and neck cancer and was status post radical surgery. The January 1998 VA treatment report described postsurgical changes in the left maxilla extending into the orbit. The examiner stated that the veteran was status post left maxillectomy and orbital exenteration with myocutaneous flap, and in addition that the maxillary sinus and maxillary ridge had been removed on the left. The examiner stated that within Meckel's cave on the left there was enhancing soft tissue extending into the infratemporal fossa, which the examiner noted may have been postoperative change but also noted that tumor recurrence could have this appearance. The examiner also noted that the left frontal sinus was opacified, and there was a rind of dural enhancement along the anterior frontal region, which the examiner noted may have been secondary to postoperative change but that tumor extension and/or infection could also have that appearance. A March 1998 VA treatment report indicated that the veteran underwent a left maxillectomy with rectus free flap for squamous cell carcinoma antigen of the left sinus in December 1996, and that during post-operative radiation therapy, the veteran developed a mass on the left eyelid unresponsive to chemotherapy for 3 cycles, and underwent 9 weeks of radiation therapy and enucleation. The examiner entered an assessment of 16-months post-operative squamous cell carcinoma antigen maxillectomy sinus, clinically stable. In an April 1998 VA treatment report, the examiner reported that the veteran stated that he had had major extensive surgery in November 1996 that removed significant portions of his facial bones due to cancer. The examiner reported that the veteran stated that prior to surgery the veteran had suffered extensive and extreme pain in his mouth area and that when he went to visit an oral surgeon, the surgeon removed a tooth and discovered the cancer. The examiner also reported that the veteran stated that he served in the Navy from 1964 to 1968, making 3 trips to the Western Pacific and was on line 45 days from each one of those trips, and that he also served a brief time on a river boat in Vietnam waters, where he was a five-inch gun trainer and a boatswain. In a March 1999 statement, the veteran stated that he was assigned to temporary duty on a river boat in 1966 and 1967 in Vietnam, and that his ship was hit by fire from the shore during which people were injured. He stated that the gun at which he was stationed was directly below the quarters that were hit. He also stated that he was stationed in waters off Vietnam during a second cruise in 1966 and 1967. A December 1999 statement from a VA physician indicated that the etiology of the veteran's cancer was as likely as not due to his exposure to Agent Orange and other toxic chemicals while serving in Vietnam. In an October 2000 statement, the veteran stated that in March 1967 he participated in operation Sea Dragon in Vietnam. He stated that during this operation, he was as close to the beach as the ship could get, and that just prior to landing he could see aircraft dropping the defoliants in and around the area of landing. He stated that he was close enough that he could not avoid having some of it reach the ship, and that this was not an uncommon occurrence. He stated that there were a number of incidents where he was close enough to shore to be able to watch aircraft spraying the jungle. In an October 2000 VA examination report, the examiner, who had reviewed the veteran's claims file but did not physically exam the veteran, indicated that he was not aware of Agent Orange being a causative agent for squamous cell carcinoma, "especially in such an odd location as an axillary sinus." He stated that this could occur without any known toxic chemical exposure. In an October 2000, the same VA physician who submitted a statement in December 1999 again submitted a statement reiterating her assertion that the veteran's cancer was as likely as not a result of Agent Orange exposure in Vietnam. In a November 2001 statement, the veteran asserted that his maxillary cancer should be considered a cancer of the respiratory system because it involved the sinuses, and that therefore it should be presumed to be service-connected as a result of herbicide exposure along with other respiratory cancers. III. Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) IV. Analysis The Board has reviewed the evidence of record and finds that the evidence supports the grant of service connection for left maxillary squamous cell carcinoma. Initially, the Board notes that the veteran is not entitled to service connection on a presumptive basis. The Board acknowledges that the veteran's service records indicate that the veteran served in Vietnam during the applicable time period under 38 C.F.R. § 3.307(a)(6)(iii). The applicable time period is January 9, 1962 to May 7, 1975. The veteran's Form DD-214 indicates that the veteran served from April 1964 to April 1968 and that he was awarded the Vietnam Campaign Medal/Ribbon and the Vietnam Service Medal/Ribbon. According to his service records, the veteran served on a ship, the U.S.S. Canberra, in waters off of Vietnam, which satisfies the requirement for service in Vietnam under 38 C.F.R. § 3.313. However, although the evidence establishes that the veteran served in Vietnam during the applicable time, the veteran has not been diagnosed with a disease listed under 38 C.F.R. § 3.309(e). The veteran can only receive service connection on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). As noted above, these diseases include Type 2 diabetes, Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea only), and soft-tissue sarcoma. The veteran's diagnosis of left maxillary squamous cell carcinoma does not appear in this list of diseases, and thus the veteran cannot be awarded service connection on a presumptive basis. The Board is aware that the veteran indicated that his type of cancer should be included in the list of respiratory cancers. The Board notes that if VA adds a new disease to those enumerated in 38 C.F.R. § 3.309(e), the veteran may request that his claim be readjudicated, but, by law, VA cannot grant presumptive service connection at this time for a disease not currently listed in 38 C.F.R. § 3.309(e). However, the Board finds that the evidence supports a grant of service connection on a direct basis for left maxillary squamous cell carcinoma. In order to receive service connection on a direct basis, there must be evidence of a current disability, evidence of a nexus between the current disability and service, and proof of inservice incurrence of the disease or injury. The Board notes that the veteran has a current disability of left maxillary squamous cell carcinoma. VA treatment records indicate that the veteran has post treatment residuals. Regarding proof of inservice incurrence of this disease, the service medical and personnel records are negative for left maxillary squamous cell carcinoma. However, the veteran asserts that he was exposed to an herbicide agent in Vietnam and that this caused his left maxillary squamous cell carcinoma. He stated that he participated in operation Sea Dragon onboard the USS Canberra in Vietnam, and that during this operation, he was close to the beach and could see aircraft dropping defoliants in and around the area of landing. He stated that he was close enough so that some of it reached the ship, and that this was not an uncommon occurrence. The Board notes that the service records indicate that the veteran served in Vietnam and accepts the veteran's testimony that he was exposed to an herbicide agent while there. Finally, the evidence establishes a nexus between the veteran's left maxillary squamous cell carcinoma and exposure to an herbicide agent in service. A VA physician, in two statements dated December 1999 and October 2000, indicated that the etiology of the veteran's cancer was as likely as not due to his exposure to Agent Orange and other toxic chemicals while serving in Vietnam. There was another medical opinion in the veteran's file, in an October 2000 VA examination report, from another examiner who indicated that he was not aware of Agent Orange being a causative agent for squamous cell carcinoma "especially in such an odd location as an axillary sinus." The Board finds that this opinion essentially indicates that the examiner did not know whether left maxillary squamous cell carcinoma could be caused by exposure to herbicides. The first physician, however, did indicate that the veteran's left maxillary squamous cell carcinoma was as likely as not due to his exposure to Agent Orange and other toxic chemicals while serving in Vietnam, and this evidence is sufficient to establish a nexus between the veteran's current disability and service. For the reasons stated above, the Board finds that the evidence supports the veteran's claim for service connection for left maxillary squamous cell carcinoma. In reaching this determination, the Board notes that service connection is granted on a direct basis rather than on a presumptive basis. ORDER Service connection for left maxillary squamous cell carcinoma is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.