Citation Nr: 0805038 Decision Date: 02/12/08 Archive Date: 02/20/08 DOCKET NO. 05-01 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth. REPRESENTATION Appellant represented by: Reverend Will W. Daniels WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from May 1966 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in St. Petersburg, Florida. In July 2005, the veteran testified at a personal hearing before a Veterans Law Judge in Washington, D.C. A transcript of the hearing has been associated with the veteran's claims file. This matter was previously before the Board in February 2007, at which time the veteran's previously denied claim for service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth was reopened and denied on the merits. The veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). After considering a Joint Motion For An Order Partially Vacating The Board's Decision And Incorporating The Terms Of This Remand submitted by veteran and the Secretary of VA in August 2007, the Court issued an Order in September 2007 vacating the Board's decision and remanding the case for compliance with the directives specified in the aforestated joint motion. The claim is now returned to the Board. The Board notes that the Veterans Law Judge which conducted the July 2005 hearing in Washington, D.C., is no longer with the Board. Accordingly, by letter dated January 2, 2008, the veteran was provided notice of this and offered the opportunity to be scheduled for an additional hearing before a different Veterans Law Judge. The veteran was asked to respond within 30 days. The veteran has not indicated that he wishes to be scheduled for an additional hearing. FINDING OF FACT Adenoid cystic carcinoma of the right tongue and floor of the mouth is etiologically related to exposure to herbicides during the veteran's period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth, which represents a complete grant of the benefit sought. Thus, no discussion of VA's duties to notify and assist is required. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (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) (2007). In addition to law and regulations regarding service connection, the Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (2007) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a) (2007). 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 in 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 veteran seeks service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth. Although several diseases and disorders are presumptively linked to presumed herbicide exposure, the disorder in question is not among them. See 38 C.F.R. § 3.309(e) (2007). The Secretary has recently reiterated that there is no positive association between exposure to herbicides and any condition for which he has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32395 (Jun. 12, 2007). The availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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). In this case, while the law as to presumptive service connection does not apply because the claimed disorder is not included in 38 C.F.R. § 3.309(e), the evidence includes a competent medical opinion linking the disorder to military service. Stefl. There is no competent medical opinion evidence against the claim, and the benefit will be granted. The veteran's service medical records are negative for any objective findings of a disability manifested by adenoid cystic carcinoma of the right tongue and floor of the mouth. The veteran's service personnel records reveal that the veteran had service in the Republic of Vietnam from September 1967 to June 1968. His Armed Forces Of The United States Reports Of Transfer Or Discharge (DD Form 214) of record shows that the veteran received the Combat Infantryman's Badge. VA outpatient treatment records dated from April 2000 to June 2000 show that the veteran underwent surgical treatment for adenoid cystic carcinoma of the right tongue and floor of the mouth. Radical neck surgery, transmandibulotomy with excision of the cancer in the right tongue and floor of the mouth with reconstruction were performed. This was followed by radiation therapy and a PEG placement. A letter from the veteran's VA treating physician, who is Chief of Otolaryngology at the VA Medical Center in West Palm Beach, Florida, dated in May 2003, shows that the veteran was said not to have had a significant substance abuse history. The physician indicated that in March 2000, the veteran had been diagnosed with adenoid cystic carcinoma of the right floor of the mouth and tongue. Cervical metastasis was established though a radical neck dissection. The physi0cian added that the link between Agent Orange and the subsequent emergence of malignancy had been established as well as the recognition of claims in those documented cases. A letter from the veteran's VA treating otolaryngologist dated in October 2003 shows that the veteran's medical history was significant for Agent Orange exposure, which was considered a significant etiologic factor in the subsequent evolution of his carcinoma. The physician indicated that growing literature had established a link between Agent Orange exposure and the subsequent development of carcinoma in the aerodigestive tract. The physician explained that nine conditions were recognized as associative conditions following exposure to Agent Orange. Specifically mentioned were cancers of the larynx and trachea. The veteran had cancer of his upper aerodigestive tract. The origin related to a cancerous change within the mucous membrane. Evidently there had been sufficient documentation to cause inclusion of the larynx and trachea, but those cancers arising superior to these sites were considered not associated. The physician recommended consideration of any toxic effect that could create such a change in the larynx or trachea could also affect the tissues superior to these locations, and any toxic effects would in fact be increased the closer the exposure was to the nares or lips. He concluded that origin of these cancers were in the same range of exposure. As noted above, the medical evidence of record shows that the veteran has had service in the Republic of Vietnam from September 1967 to June 1968. He is, therefore, presumed to have been exposed to an herbicide agent as there is no affirmative evidence establishing that he was not exposed to any such agent during service. See 38 C.F.R. § 3.309(e) (2007). The veteran has developed adenoid cystic carcinoma of the right tongue and floor of the mouth. The VA examiner in October 2003 established that the veteran did have Agent Orange exposure, which was considered a significant etiologic factor in the subsequent evolution of his carcinoma, and that growing literature had established a link between Agent Orange exposure and the subsequent development of carcinoma in the aerodigestive tract. This evidence supports the veteran's claim for service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth because it demonstrates a link between the exposure to herbicides in service and the current adenoid cystic carcinoma of the right tongue and floor of the mouth. In this regard, although there is no evidence of adenoid cystic carcinoma of the right tongue and floor of the mouth in service, all the evidence, including that pertinent to service, establishes that the adenoid cystic carcinoma of the right tongue and floor of the mouth was incurred as a result of service. 38 C.F.R. § 3.303(d) (2007). The presumptive provisions of 38 C.F.R. § 3.309(e) do not provide competent medical evidence to rebut the VA specialist's assessment. The National Academy of Sciences (NAS) periodically undertakes studies to ascertain whether the diseases discussed by NAS should be added to the list of diseases presumed to be incurred or aggravated by service. When the NAS does not find such a presumptive connection, the law provides that "presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid." 38 C.F.R. § 3.303(d) (2007). Stated alternatively, the presumptive provisions and their underlying rationale as provided by NAS may not, by law, foreclose the establishment of direct service connection for the disorders that are not found to be presumptively linked to military service. The Board finds probative the May and October 2003 opinions of the VA physician, who opined that the veteran's adenoid cystic carcinoma of the right tongue and floor of the mouth and exposure to herbicides in service. These opinions are probative as they were definitive, formulated by the Chief of Otolaryngology who has been treating the veteran throughout the entire course of his treatment, and supported by detailed rationale. Accordingly, they are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access the veteran's medical history and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In light of the foregoing, upon reflection, the Board finds that the evidence supports the veteran's claim of service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth and thus service connection is warranted. ORDER Service connection for adenoid cystic carcinoma of the right tongue and floor of the mouth is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs