Citation Nr: 1323783 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-40 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for cancer of the tonsils. 2. Entitlement to service connection for cancer of the lymph nodes. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to June 1972. The Veteran also had a subsequent period of unverified service with a reserve component. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). In June 2011, the Board denied service connection for cancer of the tonsils and cancer of the lymph nodes. In an April 2013 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) reversed the Board's finding and conclusion that the claimed cancers were not related to service, set aside the Board decision, and remanded the matter back to the Board for further adjudication. In the decision below, the Board will implement the Court's memorandum decision. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam War Era and, as such, is presumed to have been exposed to herbicide agents. 2. The Veteran's cancer of the tonsils is attributable to his exposure to herbicide agents during active service. 3. The Veteran's cancer of the lymph nodes is attributable to his exposure to herbicide agents during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for cancer of the tonsils have been met. 38 U.S.C.A. §§ 1110, 1116(f) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2012). 2. The criteria for service connection for cancer of the lymph nodes have been met. 38 U.S.C.A. §§ 1110, 1116(f) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002), 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection requires competent evidence showing: (1) evidence of in-service incurrence or aggravation of a disease or injury; (2) evidence of current disability; and (3) evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, 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 containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in 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 & Supp. 2013); 38 C.F.R. § 3.307 (2012). As noted in the introduction, the Court has ordered that service connection for cancer of the tonsils and lymph nodes be granted as detailed in the April 2013 memorandum decision. The evidence shows that the Veteran served in Vietnam during the Vietnam War Era and, as such, is presumed to have been exposed to herbicide agents. Additionally, there is competent medical evidence tending to relate the Veteran's cancer of the tonsils and lymph nodes to exposure to herbicide agents during active service has been presented. According to the Court, the record contains no negative medical nexus opinions refuting the two positive nexus reports of record. In the memorandum decision, the Court explained that VA's scientific research indicating that presumptive service connection is not warranted for certain cancers as a result of herbicide exposure does not render the private nexus opinions not credible as the research only applies to presumptive service connection and not direct service connection. See Polovick v. Shinseki, 23 Vet. App. 48 (2009). Accordingly, service connection is warranted for cancer of the tonsils and cancer of the lymph nodes. The Court then remanded the case, ". . . for the Board to determine the appropriate effective date and schedular rating for [the Veteran's] cancers." Having granted service connection for the claimed cancers, the matter that is before the Board is considered resolved. Upon return of this case to the RO, an initial schedular rating and effective date for that rating will be assigned by the RO. If the Veteran is dissatisfied with either the rating or the effective date assigned, he is invited to submit a notice of disagreement in accordance with instructions that will accompany the RO's rating decision. This procedure preserves the Veteran's right to consideration of these matters by the RO in the first instance and one review on appeal by the Secretary. 38 U.S.C.A. § 7104 (a) (West 2002). No further discussion or analysis of the merits of the claim is necessary. ORDER Service connection for cancer of the tonsils is granted. Service connection for cancer of the lymph nodes is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs