Citation Nr: 1200535 Decision Date: 01/06/12 Archive Date: 01/13/12 DOCKET NO. 09-30 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for squamous cell carcinoma of the right base of the tongue and tonsil, to include as secondary to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1968 to February 1972. He was stationed in Vietnam from July 1969 to July 1970, and from March 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which confirmed a previous denial of service connection for squamous cell carcinoma of the right base of the tongue and tonsil, to include as secondary to exposure to herbicides. In October 2009, the Veteran testified before a Decision Review Officer. In January 2011, he testified at a video conference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. In February 2011, the Board reopened the previously denied claim and remanded the underlying de novo issue for further evidentiary development. The March 2011 VA examination report raises the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for tooth loss, damaged parotid (saliva) glands, and xerostomia (dry mouth) secondary to complications of radiation treatment. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from July 1969 to July 1970 and from March 1971 to February 1972. 2. Squamous cell carcinoma of the right base of the Veteran's tongue and tonsil was caused by his conceded in-service exposure to herbicides. CONCLUSION OF LAW Squamous cell carcinoma of the right base of the tongue and tonsil was incurred as a result of the Veteran's active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2011). Additionally, where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such a disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Pursuant to 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are satisfied. According to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (2009). Indeed, the United States Court of Appeals for the Federal Circuit has agreed with VA's interpretation of its regulations that "duty or visitation" in the Republic of Vietnam contemplates actual presence on the landmass of the country. Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Here, the Veteran's service personnel records reflect his service in Vietnam from July 1969 to July 1970 and from March 1971 to February 1972. Thus, he is presumed to have been exposed to herbicides. Medical evidence of record reflects the Veteran's treatment for squamous cell carcinoma of the right base of the tongue and tonsil. This condition is currently in remission. With regard to the matter of the etiology of the squamous cell carcinoma of the right base of the Veteran's tongue and tonsil, the Board acknowledges that this disorder is not a disability presumed to be related to herbicide exposure. 38 C.F.R. § 3.307, 3.309(e). In any event, however, while service connection for this disability based on conceded in-service exposure to herbicides may not be awarded on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See also 38 C.F.R. § 3.303(d) & Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984); Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991). The record in the current appeal contains two opinions that discuss the relationship between the Veteran's cancer and his military service. First, pursuant to the February 2011 Board Remand, the Veteran underwent a VA examination in March 2011. The examiner, an ears, nose, and throat (ENT) specialist, acknowledged the Veteran's history of squamous cell carcinoma and the fact that he had been exposed to Agent Orange while serving in Vietnam. The examiner opined that "[i]t is more likely than not" that [the Veteran's] cancer was a result of his Agent Orange exposure. Second, in a May 2011 opinion, a VA nurse practitioner stated, after review of the Veteran's claims file (to include the March 2011 VA examination report and multiple ENT records from November 2004 through November 2010) that it was his conclusion that the Veteran's right tonsil and base of tongue cancer "is more likely than not" a result of his herbicide exposure. The Board acknowledges that it is not clear whether the VA examiner reviewed the Veteran's claims file. Also, neither medical opinion contains rationale. However, the record reflects that both providers were familiar with the Veteran's medical history, to include the development of his cancer. Thus, the opinions remain probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, as noted above, service connection may still be established on the basis of herbicide exposure with proof of actual direct causation. This has been accomplished through the March 2011 and May 2011 opinions. See Combee, 34 F.3d at 1043. For these reasons, and resolving any reasonable doubt in the Veteran's favor, service connection for squamous cell carcinoma of the right base of the tongue and tonsil, as a result of his conceded in-service exposure to herbicides, is warranted. ORDER Service connection for squamous cell carcinoma of the right base of the tongue and tonsil, as secondary to in-service exposure to herbicides, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs