Citation Nr: 1518277 Decision Date: 04/28/15 Archive Date: 05/05/15 DOCKET NO. 06-27 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for squamous cell carcinoma of the tongue, to include as due to exposure to herbicide. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to January 1973 and from November 1983 to August 1987. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for squamous cell carcinoma of the tongue. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issue on appeal was previously remanded by the Board in October 2013 for further evidentiary development of requesting outstanding post-service treatment records and to obtain a VA examination for the Veteran's cell carcinoma of the tongue. This was accomplished, and the claim was readjudicated in an October 2014 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents (Agent Orange). 2. The Veteran has currently diagnosed squamous cell carcinoma of the tongue. 3. Squamous cell carcinoma is not one of the diseases recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 4. The evidence is in equipoise as to whether the Veteran's squamous cell carcinoma of the tongue is related to in-service herbicide exposure based on proof of actual direct causation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for squamous cell carcinoma of the tongue have been met. 38 U.S.C.A. § 1110, 1116, 1131 (West 2014); 3.102, 3.303, 3.307, 3.309 (2014); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for certain diseases is also presumed. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. In the current appeal, the Veteran asserts that he has tongue cancer as a result of his active military service. Specifically, he maintains that he developed tongue cancer as a result of exposure to herbicides during his service in Vietnam. Thus, the Veteran contends that service connection is warranted for tongue cancer. Service personnel records document the Veteran's visitation to the Republic of Vietnam in 1971. Thus, he is presumed to have been exposed to herbicide agents during service. The Board finds that although exposure to Agent Orange is conceded due to the Veteran's service in Vietnam, squamous cell carcinoma of the tongue is not among the diseases listed as presumptively associated with Agent Orange exposure. Thus, the Veteran is not entitled to service connection on a presumptive basis. 38 C.F.R. § 3.309(e). Nonetheless, the Veteran may establish service connection if the evidence shows that his current squamous cell carcinoma was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). In this regard, service treatment records are silent for any symptoms, diagnoses, or treatment for any oral or throat disorders. There is no evidence that the Veteran's military duties included handling or spraying of herbicide. In an October 2004 letter, a VA physician noted that the Veteran had participated in a VA examination and laboratory testing for possible health problems related to exposure to herbicide. The physician stated that the examination and tests showed a history of squamous cell carcinoma of the tongue, epiglottis, and lymph nodes. Four days later, a VA physician noted that the Veteran had been diagnosed with squamous cell carcinoma of the tongue. The Veteran underwent oral surgery and concurrent chemical and radiation therapy. In an excerpt of an April 2005 VA treatment note, a VA physician stated, "I do not know why 'cancer of the larynx, trachea, bronchus, and lung' are considered sc related cancers linked to agent orange exposure are service connected but that vets [sic] oral cancer of the tongue is not - he smoked for only about 2 years decades ago." In August 2005, a VA primary care physician noted that the Veteran had no current complaints and that he was being followed in the oncology clinic. In May 2006, a VA physician noted that the Veteran had no complaints. He noted no nasopharynx or oropharynx masses or lesions and diffuse radiation changes in the hypopharynx. He stated that his examination showed no evidence of disease. Subsequently dated VA records (from 2007 through 2011) primarily mention cancer of the tongue by history only. A VA examination was conducted in June 2011 to address the etiology of the Veteran's squamous cell cancer of the tongue. The examiner noted that this condition was not in remission. The examiner noted that the Veteran developed a bleeding sore on his tongue in 2004. A doctor at that time found that he had tongue cancer. Surgery was performed and post surgical treatment included chemotherapy and radiation. The examiner opined that the Veteran's tongue cancer was less likely than not related to his time in service that included Agent Orange exposure. The examiner reasoned that a review of the VA criteria for Agent Orange did not include tongue cancer or squamous cell cancer as a possible complication. The Board finds that this opinion weighs against the Veteran's claim that squamous cell cancer of the tongue is related to service. In a September 2012 report, a private physician, G.K., M.D., noted that he had reviewed the medical records. He provided an opinion stating that scientifically, it was more likely than not that the Veteran's squamous cell cancer was caused by or related to his in-service exposure to Agent Orange. Dr. G.K. reasoned that none of the medical records indicated that any of the Veteran's treating physicians diagnosed a cause other than exposure to herbicides for the diagnosis of tongue cancer. He added that the available scientific studies failed to prove an association between herbicide exposure and oral cancer like the Veteran's "beyond a reasonable doubt," but multiple studies had identified an association "at the more likely than not level of certainty." New research cited by VA (Veterans and Agent Orange: Update 2010 (VAO 2010) identified a plausible biological mechanism by which the Veteran's herbicide exposure might have caused his cancer. Specifically, he indicated that the "new evidence indicating that cancer of the tonsils can have a viral HPV [human papillomavirus] etiology underscores a reasonable mechanistic hypothesis for an excess of cancers in Vietnam-era veterans exposed to Agent Orange." In conclusion, he again stated that it was his opinion that scientifically, it was more likely than not that the Veteran's squamous cell cancer of the tongue was caused by or related to his inservice exposure to Agent Orange. The report includes a list of scientific studies which the private physician claimed showed a "more likely than not association between herbicide exposure and oral cancers." The Board finds that this opinion weighs in favor of the Veteran's claim that squamous cell cancer of the tongue is related to in-service herbicide exposure. Pursuant to the Board's October 2013 remand directive, a VA medical examination was obtained in August 2014 to assess the possible etiology of the Veteran's squamous cell carcinoma of the tongue. The examiner cited to medical literature and noted that "The most strongly recognized risk factors for squamous cell carcinoma of the oral cavity and oropharynx (base of the tongue, where this patient's cancer was located) are tobacco use, alcohol use, and human papillomavirus infection (particularly for oropharyngeal carcinomas)." Further, the examiner noted that while causation has not been proven in the literature for Vietnam era herbicides, some reports have noted an increase in incidence and/or mortality from oral cavity, oropharyngeal cancer, laryngeal cancer, or other head and neck cancers. For these reasons, the VA examiner opined that "It is not possible to determine without resorting to speculation, whether this veteran's squamous cell carcinoma of the base of the tongue is caused by exposure to herbicides." The Board finds that the August 2014 VA medical opinion weighs neither for nor against the claim, and is therefore not pertinent either way. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Board finds that the June 2011 VA medical opinion and the September 2012 report from Dr. G.K. are of some probative value as they both reported on the Veteran's medical history and provided an opinion supported by a well-reasoned rationale. The Board finds that the August 2014 VA medical opinion weighs neither for nor against the claim. As such, the Board finds that the evidence for and against whether the Veteran's squamous cell carcinoma of the base of the tongue is due to service is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for squamous cell carcinoma of the tongue is warranted. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). The claim of service connection for squamous cell carcinoma has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection for squamous cell carcinoma), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for squamous cell carcinoma of the tongue is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs