Citation Nr: 18148008 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-17 390 DATE: November 6, 2018 ORDER Service connection for squamous cell carcinoma of the tongue/mouth is denied. Service connection for scars due to cancer treatment is denied. Service connection for loss of teeth is denied. Service connection for loss of gums due is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding that squamous cell carcinoma of the tongue/mouth had its onset during or is otherwise related to the Veteran’s period of service, to include due to presumed in-service herbicide agent exposure. 2. The weight of the competent and probative evidence is against finding that scars had their onset during or are otherwise related to the Veteran’s period of service. 3. The weight of the competent and probative evidence is against finding that loss of teeth had its onset during or is otherwise related to the Veteran’s period of service. 4. The weight of the competent and probative evidence is against finding that loss of gums had its onset during or is otherwise related to the Veteran’s period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for squamous cell carcinoma of the tongue/mouth have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for scars due to cancer treatment have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for loss of teeth have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for loss of gums have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1968; he died in November 2014. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the appellant testified before the undersigned at a Board hearing in Portland, Oregon. A transcript of that hearing has been associated with the virtual file and reviewed. REFERRED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), was raised in correspondence received by VA in September 2013, prior to the Veteran’s death, and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for squamous cell carcinoma of the tongue/mouth. The appellant contends that service connection is warranted for cancer of the tongue/mouth based on in-service herbicide agent exposure. If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The Veteran’s military personnel records demonstrate that he served in Vietnam from April 1967 to April 1968. 11/21/2014, Military Personnel Record. Accordingly, the Veteran is presumed to have been exposed to herbicide agents during service. 38 C.F.R. § 3.307(a)(6)(iii). The record contains a competent diagnosis of squamous cell carcinoma of the floor of the mouth/tongue. 04/13/2015, CAPRI. Accordingly, the Board finds competent evidence of a current disorder. The Veteran’s service treatment records do not contain complaints of, treatment for, or a diagnosis of cancer of the mouth/tongue during his period of active service. See 11/04/2013, STR-Medical. He was diagnosed with squamous cell carcinoma of the floor of the mouth in June 2008, nearly 40 years after discharge. 04/13/2015, CAPRI. In April 2015, a VA examiner clarified that the origin of the Veteran’s squamous cell cancer was in the tongue, which is part of the oropharynx, rather than the more distal structures (larynx, trachea, bronchi, lung). 04/15/2015, Medical Opinion. As squamous cell carcinoma of the tongue/mouth is not one of the diseases set forth in 38 C.F.R. § 3.309(e), a presumption based on in-service herbicide agent exposure is therefore not warranted. However, the Board will consider whether there is evidence of actual direct causation of squamous cell carcinoma of the tongue/mouth, to include due to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In August 2015, VA received a revised report from M.L., MD, a private oncologist, in which he opines that it is at least as likely as not that the Veteran’s squamous cell carcinoma of the tongue/mouth is due to in-service herbicide agent exposure. In support of his conclusion, the oncologist explained that VA grants service connection on a presumptive basis for other cancers in the same immediate area of the body, upper aerodigestive tract, and of the same histological type. The private physician cited to a report titled, Report to Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange (1990), by Admiral E.R.Z., Jr., which expresses the author’s opinion that it is at least as likely as not that there is a relationship between exposure to Agent Orange and certain health problems, to include nasal/pharyngeal/esophageal cancers. The Board finds that Admiral E.R.Z., Jr., is not competent to provide an opinion as to the relationship between Agent Orange and certain diseases, as there is no evidence of record demonstrating that Admiral E.R.Z., Jr., had the requisite medical or scientific expertise needed to reach such a conclusion. See 38 C.F.R. § 3.159(a); Jandreau, 492 F.3d at 1377. Acknowledging that the Veteran had a history of smoking tobacco and consuming alcohol, the private physician noted that the Veteran quit smoking in the early 1980s, with a few relapses, before quitting completely in 2008, and that he is merely a social drinker, and concluded that tobacco and alcohol were less than 50 percent causative factors because smoking and drinking had not been a factor for several decades preceding the diagnosis of cancer. 08/20/2015, Medical-Non-Government. In April 2015, a VA examiner opined that it is less likely than not that squamous cell carcinoma of the tongue/mouth had its onset in or is otherwise related to the Veteran’s period of service, to include due to presumed herbicide agent exposure. The examiner explained that the Institute of Medicine, which is thus far the most exhaustive examiner of all meta analyses, has not changed its position as to whether there is evidence of an association between Agent Orange and the cancer at issue as of the most recent update, and the examiner was unable to find new evidence since then in a search of the medical literature. Additionally, the Veteran used both alcohol and tobacco, which are both well known risk factors for squamous cell carcinoma of the mouth. The examiner addressed the opinion of Dr. M.L., stating that it appears he did not have accurate information provided to him about the extent of the two known risk factors, alcohol and tobacco use, and also it is understandable that without knowing the technicalities of the VA compensation system, he would include oropharyngeal cancer with the remainder of those given presumptive service connection. In support, the examiner noted numerous treatment notes reflecting the Veteran’s reports of tobacco and alcohol use until at least March 2005. 04/15/2015, Medical Opinion; see also 10/30/2001, Medical-Government (Veteran’s reports of smoking up to a pack per day and 10 beers per day from 1994 to 2001). In light of the treatment notes to the contrary, the Board finds that the Veteran’s statements to Dr. M.L. regarding the amount of his tobacco use and alcohol consumption are not credible, and that he continued to use tobacco and alcohol for several decades following discharge. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Accordingly, the Board assigns more probative weight to the April 2015 VA examiner’s opinion than the August 2015 revised report from Dr. M.L., the latter of which was based on an incorrect factual premise. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Additionally, the April 2015 VA examiner’s opinion cites to relevant medical literature, including the Institute of Medicine’s most recent report on veterans and Agent Orange, whereas Dr. M.L. relied upon a report by Admiral E.R.Z., Jr., who was not competent to render such an opinion. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that squamous cell carcinoma had its onset during or is otherwise related to the Veteran’s period of service, to include due to presumed herbicide agent exposure. See 38 C.F.R. §§ 3.102, 3.303. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for scars due to cancer treatment. 3. Entitlement to service connection for loss of teeth. 4. Entitlement to service connection for loss of gums. The appellant contends that service connection is warranted for scars and loss of teeth and gums, which are due to the Veteran’s cancer treatment. The Board finds that the record contains competent evidence of conditions of the gums and teeth, and scars due to cancer treatment. 03/30/2010, CAPRI; 08/20/2015, Medical-Non-Government. The Board notes that the evidence does not demonstrate, and the appellant does not claim, in-service treatment for, complaints of, or diagnoses related to the gums, teeth, or scars of the neck. 11/04/2013, STR-Medical. Nor does the evidence demonstrate, and the appellant does not claim, that scars and loss of teeth and gums are related to service, other than on a secondary basis. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that scars and loss of teeth and gums had their onset during or are otherwise related to the Veteran’s period of service. See 38 C.F.R. §§ 3.102, 3.303. As the Board denied service-connection is for cancer of the mouth/tongue herein, service connection for scars and loss of teeth and gums is not warranted on a secondary basis. See Allen, 7 Vet. App. at 448-49; 38 C.F.R. § 3.310. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel