Citation Nr: 1808930 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 17-05 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether severance of entitlement to service connection for squamous cell carcinoma of floor of mouth, effective August 1, 2016, is proper. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran had active service from September 1970 to March 1972 in the United States Army, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The evidence does not show that the grant of service connection for squamous cell carcinoma of the mouth was clearly and unmistakably erroneous. CONCLUSION OF LAW As the criteria for severance of service connection are not met, severance of service connection for squamous cell carcinoma of the mouth was not proper and restoration of service connection is warranted. 38 U.S.C. §§ 1110 , 1116, 5107, 5109A, 5112(b)(6), (10) (West 2012); 38 C.F.R. §§3.105 (d), 3.114(b), 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Pertinently, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including certain carcinomas, are presumptively service-connected if they manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116 (a)(1) ; 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e) (2017). Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). 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, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994). Service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (d) (2017). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth, 20 Vet. App. 482. The same standards apply in a determination of CUE in a prior decision and a determination as to whether a decision granting service connection was the product of CUE for the purpose of severing service connection; however, for the latter case the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision. See Daniels, 10 Vet. App. at 480; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, VA regulations provide that a change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 C.F.R. § 3.105 (d). The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous. Stallworth, 20 Vet. App. at 488. Severence of service connection for squamous cell carcinoma In September 2014, the Veteran was granted service connection for malignant neoplasm of the sinus, nose, throat, larynx, or pharynx (claimed as cancer). In May 2015, the VA proposed to sever service connection for squamous cell carcinoma of the floor of the mouth. The RO determined that due to clear and unmistakable error, service connection was mistakenly granted for squamous cell carcinoma of the floor of the mouth. Malignant neoplasm of the sinus, nose, throat, larynx, or pharynx (claimed as cancer), is not a condition that is considered to be a disease associated with exposure to herbicide agents as per C.F.R. 3.309 (a) (2017). The RO cited to a National Academies of Science study which concluded that oral, nasal, and pharyngeal cancer is not related to Agent Orange. The RO noted that squamous cell carcinoma, which was confirmed via skin biopsy, is not a condition associated with exposure to herbicide agents; therefore, concluded that the grant of service connection was due to clear and unmistakable error. The Board requested a medical advisory opinion from the Chief of Hematology-Oncology at Stratton VA Medical Center to determine the nature and etiology of the Veteran's cancer. In a January 2018 letter, the physician confirmed a diagnosis of squamous cell carcinoma confirmed via biopsy. He confirmed that the initial location of the cancer was at the floor of the mouth. The physician opined, however, that it was at least as likely as not that the Veteran's diagnosed cancer was related to herbicide agent exposure in Vietnam. He supported his conclusion by citing to "Military Medicine" Veterans and Agent Orange Update 2014, which found that larynx cancer is considered to be associated with herbicide exposure. The physician noted that squamous cell carcinoma was not listed as a condition associated with herbicide exposure; however, he endorsed that "the mucosa of oropharynx are similar to larynx and they likely got exposure to herbicide." He further supported his rationale by citing to an article in "Cancer" titled "Agent Orange exposure and cancer incidence in Korean and Vietnam Veterans: A prospective cohort study. The study found that Veteran's exposed to Agent Orange showed twice the risk of cancer of the mouth when compared to the normal population. Based upon the evidence of record, the Board finds that the award of service connection for squamous cell carcinoma of the mouth was not clearly erroneous. As per Stallworth, 20 Vet. App. at 488 (2006), the Board notes that severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous. The Board finds that the Veteran is entitled to service connection for squamous cell carcinoma on a direct basis as per 38 C.F.R. 3.303 (2017). The Veteran has been diagnosed with squamous cell carcinoma conformed via biopsy. VA has found exposure to herbicide agents as the Veteran's service included deployment in the Republic of Vietnam. The January 2018 medical opinion by the Chief of Hematology-Oncology concluded that it was at least as likely as not that the Veteran's squamous cell carcinoma is related to service. The Board finds the nexus opinion supporting an etiology of squamous cell carcinoma being related to service highly probative as it was made by an expert in the field of oncology. Additionally, the etiology opinion is supported by empirical research on the topic of Agent Orange Exposure and cancer. The Board notes that the RO proposed to sever service connection for squamous cell carcinoma as the disease was not associated with exposure to herbicides as per 38 C.F.R. 3.307 (2017). The Board recognizes that a grant of service connection for squamous cell carcinoma under a presumptive basis would be improper; however, the weight of evidence is in favor of entitlement to service connection for squamous cell carcinoma on a direct basis as per 38 C.F.R. 3.303 (2017), see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Since the weight of evidence supports entitlement to service connection for squamous cell carcinoma, as per Stallworth, 20 Vet. App. at 488 (2006), severance of service connection does not meet clear and unmistakable error. As the criteria for severance of service connection are not met, severance of service connection for squamous cell carcinoma of the mouth was not proper and restoration of service connection is warranted. In sum, as the determination to award service connection for squamous cell carcinoma of the mouth was not CUE, severance was improper, and restoration of service connection for squamous cell carcinoma of the mouth is warranted. ORDER Severance of service connection for squamous cell carcinoma of the mouth was improper, and restoration of service connection for squamous cell carcinoma of the mouth is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs