Citation Nr: 18141007 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-32 867 DATE: October 9, 2018 ORDER The severance of service connection of squamous cell carcinoma of the oropharynx, left tonsil, was improper; the appeal is granted. FINDING OF FACT The evidence does not show that the February 2013 rating decision was clearly and unmistakably erroneous in its grant of service connection for squamous cell carcinoma of the oropharynx, left tonsil, on the basis of exposure to an herbicide agent. CONCLUSION OF LAW The criteria for severance of service connection of squamous cell carcinoma of the oropharynx, left tonsil, have not been met. 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. The severance of service connection of squamous cell carcinoma of the oropharynx, left tonsil, was improper. In a February 2013 rating decision, the RO granted service connection for squamous cell carcinoma of the oropharynx, left tonsil, on the basis of exposure to an herbicide agent such as Agent Orange. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). In an April 2014 rating decision, the RO proposed to sever service connection for the Veteran’s tonsillar cancer, finding that it was not among the diseases listed in 38 C.F.R. § 3.309(e) for which a presumption of service connection has been established on the basis of herbicide exposure. The RO subsequently severed service connection effective August 1, 2015 in the April 2015 rating decision. For the following reasons, the Board finds that the severance of service connection was improper. Law When service connection for a disability has been in effect less than ten years, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). 38 C.F.R. § 3.105(d) (2017); see 38 C.F.R. § 3.957 (2017) (pertaining to disabilities for which service connection has been in effect for ten years or longer). Severance of service connection based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). The determination is not based on whether the original decision of service connection was correct at the time it was made, but whether the original decision “is clearly erroneous.” Prinkey v. Shinseki, 735 F.3d 1375, 1377 (Fed. Cir. 2013). In determining whether the severance of service connection was proper, the Board may consider evidence that post-dates the award of service connection, and thus is not limited to the law and the record that existed at the time of the original decision. Stallworth, 20 Vet. App. at 488; Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). Analysis VA has not met its burden of showing that the February 2013 rating decision was clearly and unmistakably erroneous in its grant of service connection for the Veteran’s tonsillar cancer; hence the severance of service connection was improper. The RO severed service connection in the April 2015 rating decision because it found that the Veteran’s tonsillar cancer was not eligible for presumptive service connection based on herbicide exposure. However, the sole fact that presumptive service connection is unavailable does not end the inquiry, as service connection may still established with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994. The Veteran has submitted statements from private treating physicians (Dr. Al-Hazzouri and Dr. Brabham) finding that his cancer was caused by Agent Orange exposure. See July 2014 Statements. The Board may consider this evidence in determining whether severance of service connection is proper. See Stallworth, 20 Vet. App. at 488. These statements show that it was not clearly and unmistakably erroneous to grant service connection for the Veteran’s cancer on the basis of herbicide exposure. Moreover, the private physicians found that the Veteran’s cancer of the oropharynx involved the respiratory tract, and thus it was a respiratory cancer. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are among the diseases for which a presumption of service connection based on herbicide exposure has been established. 38 C.F.R. § 3.309(e). A November 2014 VA medical opinion concludes that the Veteran did not have respiratory cancer. However, it does not account for the finding by the Veteran’s private treatment physician, and is not supported by an explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of an opinion is based on its reasoning). Thus, it does not outweigh the private physician’s finding. Accordingly, the evidence is at least in equipoise on this issue, and reasonable doubt is resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant); 38 U.S.C. § 5107 (2012) (a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim). Accordingly, the February 2013 rating decision was not clearly and unmistakably erroneous, and thus the severance of service connection for the Veteran’s squamous cell carcinoma of the oropharynx, left tonsil, was improper as a matter of law. See 38 C.F.R. § 3.105(d); Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel