Citation Nr: 1548412 Decision Date: 11/17/15 Archive Date: 11/25/15 DOCKET NO. 14-04 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for squamous cell carcinoma, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from June 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board previously remanded this matter for additional development in August 2015. The remand directed that the Veteran be scheduled for a VA examination. The Veteran was afforded a VA examination in May 2015. The requested development has been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicides. 2. Squamous cell carcinoma is at least as likely as not related to exposure to herbicides during active service. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Given the favorable disposition of the claim of service connection for asbestosis on appeal, which is not prejudicial to the Veteran, the Board need not discuss VA's compliance with the VCAA. The favorable disposition regarding the service connection claim in the decision below has resulted in a full grant of the benefits. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for Squamous Cell Carcinoma The Veteran asserts that squamous cell carcinoma is related to Agent Orange exposure during service in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2014). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to an 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, 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(a)(6)(iii). Those diseases include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e) (2015). Squamous cell carcinoma is not a disability that is presumptively associated with Agent Orange exposure; however, the Veteran may establish service connection as related to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service treatment records show that the Veteran was in Chu Lai, Republic of Vietnam, in 1968. Therefore, the Veteran is presumed to have been exposed to herbicides based upon service in Vietnam. Initially, the Board notes that the Veteran does not assert, and the evidence does not show, that squamous cell carcinoma was diagnosed during service or within a year of discharge from service. Post-service medical records show that squamous cell carcinoma was diagnosed in 2012. In April 2015, the Board remanded this case to obtain a VA examination. A VA examiner opined that the claimed condition is at least as likely as not related to service. The examiner cited a journal article, dated in December 2014 from the journal "Cancer," which showed that squamous cell carcinoma of the larynx and tongue has been associated with exposure to Agent Orange. The examiner stated that literature supports an association of herbicides with increased oropharyngeal cancers. In an August 2015 statement, the VA examiner provided an addendum opinion. The examiner explained that the location of squamous cell carcinoma was the gums. The examiner noted that a biopsy dated in December 2012 showed carcinoma in situ. The examiner noted that the Veteran underwent anterior gingival resection and alveolar ridge resection in February 2013. The examiner noted that records show dental loss due to bone loss. The examiner noted that several teeth were removed at the time of his left gingival cancer. The Veteran also had a bone graft in October 2012 for mandible reconstruction. The April 2015 VA medical opinion provides competent evidence linking squamous cell carcinoma to Agent Orange exposure during service. In light of the competent medical evidence of a nexus, the Board finds that it is at least as likely as not that the Veteran's squamous cell carcinoma is related to service. Accordingly, service connection for squamous cell carcinoma is granted. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on next page) ORDER Service connection for squamous cell carcinoma is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs