Citation Nr: 1341608	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  07-17 523	)	DATE
	)
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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 left tonsillar fossa, including as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	Sandra E. Booth, Attorney-at-Law


ATTORNEY FOR THE BOARD

L. Durham, Counsel






INTRODUCTION

The Veteran served on active duty from December 1967 to October 1969, including honorable service in the Republic of Vietnam.  

This appeal comes before the Board of Veterans' Appeals  (Board) from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

The Board remanded the Veteran's claim in January 2011 and denied the claim in November 2011.  The Veteran appealed the Board's decision with respect to this issue to the United States Court of Appeals for Veterans Claims (Court).  In July 2012, the Court issued an order granting a joint motion to remand (JMR) the appeal of the issue to the Board.  The appeal was returned to the Board for action consistent with the July 2012 JMR and Court order.  Subsequently, the Board requested a Veterans Health Administration (VHA) medical opinion, which has been obtained and associated with the claims file.


FINDING OF FACT

There is at least an approximate balance of positive and negative evidence as to whether the Veteran's squamous cell carcinoma of the left tonsillar fossa resulted from his military service.


CONCLUSION OF LAW

Service connection for squamous cell carcinoma of the left tonsillar fossa is warranted.  38 U.S.C.A. §§ 1101 , 1110 (West 2002); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks entitlement to service connection for squamous cell carcinoma of the left tonsillar fossa as a result of herbicide exposure during his military service.  

The Veteran is presumed to have been exposed to herbicides, such as Agent Orange, during service based on his service in the Republic of Vietnam.  38 U.S.C.A. § 1116(f) (2013).  However, squamous cell carcinoma of the left tonsillar fossa is not a recognized enumerated presumptive disease set forth in 38 C.F.R. § 3.309(e) pertaining to herbicide exposure.  Nevertheless, the Board must also consider whether service connection is warranted on a direct basis.  The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2013).  

There are conflicting opinions as to whether or not the Veteran's squamous cell carcinoma of the left tonsillar fossa resulted from in-service herbicide exposure.  Although, a VHA medical opinion indicated that it is not at least as likely as not that the Veteran's carcinoma of the left tonsillar fossa had its onset in service or was caused by the Veteran's service, including presumed exposure to herbicides, a private physician indicated in a September 2013 statement that it is more likely than not that the Veteran's described exposures were the cause of his cancer development (squamous cell cancer).  This physician discussed the medical evidence of record and the Veteran's exposure to herbicides in service, to include Agent Orange and Agent Blue.  Specifically, he stated that Agent Blue is known to have a carcinogen (Arsenic or Cacodylic acid) which has been associated with squamous cell cancers.  

In considering the evidence of record, the Board finds that the medical evidence of record for and against the claim is in relative equipoise.  Resolving doubt in favor of the Veteran, the claim of entitlement to service connection is granted.


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ORDER

Entitlement to service connection for squamous cell carcinoma of the left tonsillar fossa, including as due to herbicide exposure is granted.



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs