Citation Nr: 1323601 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-05 604 ) 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. REPRESENTATION Appellant represented by: Stephen S. Pennington, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1958 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in December 2012, which vacated an April 2012 Board decision and remanded the case for additional development. The issue initially arose from a May 2006 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's squamous cell carcinoma of the tongue is shown to have developed as a result of herbicide exposure during active service in the Republic of Vietnam. CONCLUSION OF LAW Squamous cell carcinoma of the tongue was incurred in military service. 38 U.S.C.A. §§ 1110, 1131, 1116, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in November 2005. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private medical reports, and the Veteran's statements and testimony in support of his claim. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). VA regulations provide that certain disorders associated with herbicide agent exposure in service may be presumed service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Veterans diagnosed with an enumerated disease who, during active 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 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 C.F.R. § 3.307. Base of tongue cancer is not presently listed among these enumerated diseases. VA, under the authority of the Agent Orange Act of 1991, has also 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 disorders which are not enumerated by regulation. It is noted that consistent with its findings in Update 2008, NAS in Update 2010, found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and cancers of the oral cavity (including lips and tongue). See 77 Fed. Reg. 47,924 (Aug. 10, 2012). The Court has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association."). The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In this case, the Veteran asserts that he is entitled to service connection for squamous cell carcinoma of the tongue, to include as due to exposure to Agent Orange. His service treatment records do not shown any relevant treatment, complaints, or diagnoses. He had service in the Republic of Vietnam from September 1963 to April 1964 and from May 1970 to May 1971 and his exposure to herbicides is conceded. A separation examination report, dated in May 1986, shows that his mouth was clinically evaluated as normal. Private treatment reports show that in May 2005 the Veteran was diagnosed with squamous cell carcinoma of the tongue. He underwent treatment that included surgery and radiotherapy. A May 2005 report noted a 15-year history of smoking five to ten cigarettes per day until 1969, a current history of one or two drinks of wine or beer per day, and a family history of lung cancer in a sister. In a September 2005 report, W.M.M., M.D., a professor at the University of Florida, College of Medicine, Department of Radiation Oncology, noted upper aerodigestive tract cancers, such as laryngeal cancer, were thought to be caused by Agent Orange exposure and that base of tongue cancers were also part of the upper aerodigestive tract that were likely to be caused by Agent Orange exposure as well. In correspondence dated in November 2005 statement Dr. M. stated that the base of the tongue resided in the laryngo-tracheal airway and that the etiological factors that cause laryngeal cancer were the same as those that cause base of tongue cancer, noting that the two anatomic sites were adjacent to each other. He stated that it was highly likely that the Veteran's base of tongue cancer was caused by Agent Orange exposure. In an April 2008 statement he reported that laryngeal cancer was considered to be possibly related to dioxin exposure and that if dioxin was considered a risk factor for laryngeal cancer it should also be considered a risk factor for base of tongue cancer. He reiterated his opinion in correspondence dated in January 2010. A VA examination report, dated in November 2010, noted the Veteran had been found to have a growth behind his right ear in 2005 which was determined to have come from squamous cell carcinoma of his tongue. A diagnosis of squamous cell carcinoma of the tongue, not active, with residual scars and xerostomia, was provided. The examiner concluded that it was less likely as not (less than a 50/50 probability) that cancer of the tongue was caused by or a result of Agent Orange exposure. The report noted agreement with Dr. M. regarding the risk factors, but noted that most risk factors involving the head, neck, and respiratory cancers were overlapping and specifically identified those of tobacco and environmental exposures. The examiner stated the main issue was how to interpret the presumptive diseases associated with Agent Orange and the definition of the anatomy of the larynx and the tongue. It was noted that currently, the respiratory cancers that were presumptively due to Agent Orange were cancers of the lung, larynx, trachea, and bronchus. The larynx, although located very close to the tongue was a separate entity. The larynx, or the "voice box," it was noted is located at the front of the neck and has 3 main parts: supraglottis, glottis, and subglottis. The tongue or the base of the tongue is not part of the larynx. Therefore, the Veteran's squamous cell carcinoma of the tongue was found to be less likely due to his presumption of Agent Orange exposure. In a statement dated in April 2011 S.E.H., M.D., F.A.C.P., a medical liaison with the Military Officers Association of America, reported that his opinion echoed the opinion of Dr. M. that the etiological factor that causes laryngeal cancer and tongue cancer at adjacent anatomical sites was the same. Agent Orange was found to most likely to have caused the Veteran's cancer. A VA medical expert opinion was obtained in April 2013. The examiner found that based upon a review of the record and medical judgment it was at least as likely as not that the Veteran's squamous cell carcinoma of the tongue was, in fact, incurred as a result of service to include his likely exposure to herbicide agents during service in the Republic of Vietnam. It was noted that the larynx and the tongue were in close proximity and were lined by squamous epithelium and that development of the Veteran's squamous cell carcinoma of the tongue was at least as likely as not service connected. Based upon the evidence of record, the Board finds the Veteran's squamous cell carcinoma of the tongue developed as a result of herbicide exposure during active service in the Republic of Vietnam. The preponderance of the medical evidence is in favor of his claim. Therefore, the claim for entitlement to service connection is granted. ORDER Entitlement to service connection for squamous cell carcinoma of the tongue is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs