Citation Nr: 1012540 Decision Date: 04/02/10 Archive Date: 04/14/10 DOCKET NO. 05-28 602A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for adenoid cystic cancer (ACC), with metastasis, claimed as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active military duty from February 1967 to February 1970. He served in the Republic of Vietnam from June 1968 to June 1969, and was awarded the Bronze Star Medal, among others, for such service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2006, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. In March 2007, the Board remanded the appeal. In February 2009, the Board denied the Veteran's claim. He appealed the denial to The United States Court of Appeals for Veterans Claims (Court). In September 2009, the Court issued an order granting a September 2009 joint motion to remand the appeal to the Board. The appeal was returned to the Board for action consistent with the joint motion and the Court order. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in Vietnam from June 24, 1968 to June 23, 1969, and thus exposure to Agent Orange is presumed. 2. There is competent medical evidence linking the Veteran's current adenoid cystic cancer, with metastasis to active military service, and his exposure to Agent Orange during active service. CONCLUSION OF LAW The criteria for service connection for adenoid cystic cancer, with metastasis, to include as due to exposure to Agent Orange have been met. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311(2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection The Veteran seeks service connection for adenoid cystic cancer, with metastasis, claimed as due to herbicide (Agent Orange) exposure. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009)(emphasis added). The governing law provides that 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 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." 38 U.S.C.A. § 1116(f) (West 2002). The evidence of record establishes that the Veteran served in Vietnam from June 1968 to June 1969. Accordingly, he is presumed to have been exposed to Agent Orange during such service. The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; oral, nasal, and pharyngeal cancer; bone and joint cancer; skin cancers (melanoma, basal, and squamous cell); breast cancer; female reproductive system cancer (cervix, uterus, ovary); testicular cancer; urinary bladder cancer; renal cancer; leukemia (other than chronic lymphocytic leukemia); abnormal sperm characteristics and infertility; spontaneous abortion; neonatal or infant death and stillbirth in offspring of exposed individuals; low birthweight in offspring of exposed individuals; birth defects (other than spina bifida) in offspring of exposed individuals; childhood cancer (including acute myelogenous leukemia) in offspring of exposed individuals; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders, including Parkinson's disease and amyotrophic lateral sclerosis; chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers); immune system disorders (immune suppression, autoimmunity); circulatory disorders; amyloid light-chain amyloidosis; endometriosis; and effects of thyroid homeostasis; gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum); and brain tumors, or any other disability not specified. See Notice, 72 Fed.Reg. 32395-407 (June 12, 2007); See also Notice, 68 Fed.Reg. 27630 -27641 (May 20, 2003); See also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed.Reg. 59232 (November. 2, 1999)(emphasis added). The record shows that the Veteran served in Vietnam from June 24, 1968 to June 23, 1969, and thus exposure to Agent Orange is presumed. Private records show that the Veteran was diagnosed with adenoid cystic carcinoma (ACC) of the tongue and underwent surgery in February and March 1994. He also underwent months of radiation treatment. The Veteran's ACC metastasized to his right lung and he was later diagnosed with metastatic recurrent adenoid cystic carcinoma of the head, neck and chest. The Veteran testified with respect to these and other facts at a hearing before the undersigned in September 2006. In a May 2005 statement, a private examiner, Dr. Strome, stated that the Veteran has been a longstanding patient and has been diagnosed with adenoid cystic carcinoma of the tongue base, which is exceedingly rare in this location. He stated that he felt that this unusual tumor has an association with Agent Orange exposure. The Veteran has submitted a statement from a private clinician dated in January 2010. The clinician stated that the Veteran was diagnosed with mestastic adenoid cystic carcinoma in 1994 and was treated with partial resection and radiation therapy. It was noted that after a 10 year disease free interval, he was diagnosed and treated for a mestastic lesion to the right lung in 2004, and recently he has had metastatic lesions diagnosed in his spine. The clinician noted that the provided medical records showed that the Veteran is a non-smoker and only occasional drinker without significant family history of malignancy. It was noted that the Veteran was not exposed to factors commonly associated with this type of cancer, including ionizing radiation, rubber products manufacturing asbestos mining or plumbing. The clinician stated that the Veteran is presumed to have been exposed to Agent Orange. It was reported that oral cancers of the salivary gland such as this one are rather rare and difficult to study on an epidemiologic basis. He cited a study in Finland which concluded that exposure to solvents and possibly pesticides may increase the risk of cancer of the mouth and pharynx. It was stated that given that most head and neck cancers appear later in life and that the Veteran did not have any of the usual risk factors associated with the development of head and neck cancer, one must consider his environmental exposures. It was pointed out that the Veteran did not have any high risk exposure in his history other than his in-service exposure to Agent Orange. The examiner noted that he had reviewed the provided medical records and that it was his medical opinion that it is as likely as not that the Veteran's metastic adenoid cystic carcinoma was the result of his in- service Agent Orange exposure. He stated that he based his opinion on his review of the Veteran's military and medical history as well as his review of the current medical literature on the topic. He included footnotes referencing the literature he had reviewed on the topic. There is no evidence or any argument that the Veteran's ACC was incurred or aggravated during service or manifested to a compensable degree within one year after service separation. The sole causal connection to service is argued to be the Veteran's presumed exposure to herbicide agents. The Board notes that the Veteran has mestastic adenoid cystic carcinoma. As such, this disability is not one of those which VA has determined would warrant service connection on the presumptive basis of exposure to Agent Orange. Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a Veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease, injury, or service- connected disability and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In addition, the Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Upon considering this claim on a direct basis, the Board notes that ACC was not manifested during service or for 24 years after discharge from service. It is therefore clear that the cancer was not manifested during service or within the one-year presumptive period for malignant tumors. The question now becomes whether the cancer is otherwise related to service. 38 C.F.R. § 3.303(d). The Board finds that the evidence supports a finding that service connection is warranted for ACC on a direct basis. First, inservice exposure to Agent Orange is conceded. Second, the Veteran has been diagnosed with a current disorder, ACC. Finally, the current disorder has been medically linked to the inservice exposure. As noted, the January 2010 examiner, upon reviewing literature and studies, concluded that the Veteran's cancer is at least as likely as not caused by Agent Orange exposure. The examiner relied on studies which it is apparent that such constituted sufficient evidence in the examiner's mind to warrant an opinion that there is at lease a 50 percent probability that the Veteran's ACC cancer is due to exposure to Agent Orange. After considering this medical opinion, and reviewing the evidence in its entirety, the Board concludes that service connection for ACC is therefore warranted on a direct basis. The nexus opinion provided included a review of the medical records and an opinion based on rationale including referenced medical treatises and studies. Further, the opinion stands uncontradicted in the record. As such service connection is warranted. ORDER Service connection for adenoid cystic cancer, with metastasis, to include as due to herbicide (Agent Orange) exposure is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs