Citation Nr: 18153579 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-30 548 DATE: November 29, 2018 ORDER Entitlement to service connection for squamous cell carcinoma of the tongue and floor of the mouth, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s squamous cell carcinoma of the tongue and floor of the mouth is not a disease presumed to be related to in-service exposure to herbicides; the competent evidence of record does not show that the Veteran has squamous cell carcinoma of the tongue and floor of the mouth that had its onset during active service, or that is otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of the tongue and floor of the mouth, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to December 1968, including service in the Republic of Vietnam from December 1967 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was previously remanded by the Board in August 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In August 2017, the Board remanded the claim of entitlement to service connection for respiratory cancer for additional development. A June 2018 rating decision granted entitlement to service connection for lung cancer. As this represents a total grant of the benefit sought on appeal with respect to that issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In his substantive appeal, the Veteran requested a hearing before a Veteran’s Law Judge of the Board. See VA Form 9, Appeal to Board of Veterans’ Appeals, received October 2013. However, in May 2015, the Veteran contacted the RO and stated that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. 1. Entitlement to Service Connection for Squamous Cell Carcinoma of the Tongue and Floor of the Mouth The Veteran contends that he has squamous cell carcinoma of the tongue and floor of the mouth that are related to his active service, on a direct basis, to include as due to exposure to herbicide agents. Specifically, the Veteran contends that his tongue and mouth cancer are due to his exposure to herbicides during service in Vietnam. See VA Form 9, Appeal to Board of Veteran’s Appeals, received October 2013. The evidence of record shows that the Veteran has a current diagnosis of squamous cell carcinoma, left ventral tongue and floor of mouth. See, e.g., October 2017 VA examination. Therefore, there is evidence of a current disability. The Veteran’s military personnel records reflect that he served in the Republic of Vietnam from December 1967 to December 1968. As such, exposure to herbicide agents is conceded, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a) (6) (iii) (2017). With respect to a nexus between the Veteran’s tongue and mouth cancer, VA has determined that certain diseases, including various types of cancer, are deemed associated with herbicide exposure. 38 U.S.C. § 1116 (a) (2012); 38 C.F.R. §§ 3.307, 3.309 (e) (2017). Such identified diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307 (a) (6), even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e) (2017); see generally McCartt v. West, 12 Vet. App. 164, 166-68 (1999). The probative evidence of record shows that the Veteran had service in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicide agents during active service. However, neither tongue cancer nor mouth cancer are listed as diseases warranting presumptive service connection based on in-service herbicide exposure under 38 C.F.R. § 3.309 (e). As the Veteran’s tongue cancer and mouth cancer are not included in the list of diseases for which presumptive service connection may be awarded on the basis of herbicide exposure, entitlement to service connection for tongue cancer and mouth cancer on a presumptive basis as due to in-service exposure to herbicide agents is not warranted. Even though service connection on a presumptive basis is not warranted, the Veteran is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994), 38 U.S.C. §§ 1113 (b), 1116 (2012); 38 C.F.R. § 3.303 (2017). In this case, however, the competent evidence of record fails to demonstrate that the Veteran’s tongue cancer and/or mouth cancer had their onset in service or are otherwise related to service. Additionally, the Veteran has not contended that his tongue cancer and/or mouth cancer are due to any in-service event, injury or illness other than exposure to herbicides. Therefore, the Board finds that service connection is not warranted on a nonpresumptive direct-incurrence basis. Specifically, the Veteran was provided a VA dental and oral conditions examination in October 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner opined that the Veteran’s tongue cancer and mouth cancer were less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner stated that the Veteran’s tongue cancer is a primary cancer and the floor of the mouth cancer appears to be a secondary cancer that metastasized from the tongue. The VA examiner further stated that Veteran’s service treatment records do not indicate that the Veteran was seen or treated for complains of tongue or mouth conditions during active service or within one year after separation from active service; nor is there evidence of an incident, illness, or event that would have caused his tongue or mouth cancer. Additionally, the VA examiner noted that the Veteran admitted that he has a fifteen-year history of smoking one pack of cigarettes per day, which is most likely the cause of his current cancers. The only evidence indicating an association between the current tongue cancer and mouth cancer and active duty are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of tongue cancer and mouth cancer is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current tongue cancer and/or mouth cancer had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to be deemed competent to offer a medical opinion as to the etiology of tongue cancer and mouth cancer. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay statements provided by the Veteran are not competent evidence as to whether the Veteran’s current tongue cancer and mouth cancer are related to his active service. Moreover, such a finding is not supported by the record. Specifically, the October 2017 VA examiner opined that the Veteran’s tongue cancer and mouth cancer are more likely than not related to his fifteen-year smoking history, not his presumed exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for tongue cancer and entitlement to service connection for mouth cancer. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102,   5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel