Citation Nr: 1815186 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 15-19 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for squamous cell carcinoma at the base of the tongue, to include as due to in-service herbicide exposure and/or service-connected prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1970, including service in the Republic of Vietnam from November 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2017, the Board remanded this case for additional development. The case is now again before the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c) (2017). 38U.S.C.A. §7107(a)(2) (West 2015). FINDING OF FACT The Veteran's squamous cell carcinoma was not present in service or until many years thereafter and is not etiologically related to service, to include presumed herbicide exposure; nor has the squamous cell carcinoma been proximately caused or aggravated by the Veteran's service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or that has been aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). Establishing service connection on a secondary basis requires evidence to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. §3.310). Where a veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2017). A veteran who served in the Republic of Vietnam during the Vietnam Era 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 service. 38 U.S.C.A. § 1116(f) (West 2015); 38 C.F.R. § 3.307 (2017). Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116 (b)(1) (West 2015). As such, presumptive service connection will be granted for certain conditions where a veteran is presumed to have been exposed to herbicide agents during service. See 38 C.F.R. § 3.309(e) (2017). However, squamous cell carcinoma is not among the list of conditions subject to presumptive service connection. Id. Furthermore, the Secretary has published a list of conditions for which it has been specifically determined that there is not an association with exposure to herbicides. This list includes "skin cancers (melanoma, basal, and squamous cell)." See Notice, 72 Fed. Reg. 32, 395-407 (June 12, 2007). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116 (b)(2) (West 2015). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against this association. 38 U.S.C.A. § 1116(b)(3) (West 2015). The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claim. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The record shows the Veteran was diagnosed with squamous cell carcinoma of the left base of the tongue and left neck in March 2010. He underwent chemotherapy and radiation treatment, which was completed in June 2010. The Veteran asserts his squamous cell carcinoma was caused by in-service exposure to herbicide agents. The Veteran served in Vietnam, and as such, in-service exposure to herbicide agents has been conceded. Alternatively, he asserts his squamous cell cancer was caused or aggravated by his service-connected prostate cancer. Pursuant to the Board's July 2017 remand, the Veteran was afforded a VA examination in November 2017. The examiner stated that there was no evidence of a return of the Veteran's squamous cell carcinoma, but that he continued to be monitored and was in "watchful waiting" status. The examiner then opined it was less likely than not that the Veteran's squamous cell carcinoma was incurred in or caused by service. In this regard, the examiner first noted there was no evidence in the record of pre-cancerous lesions or other symptoms related to squamous cell carcinoma at the base of the tongue or the oropharyngeal region during the Veteran's active service. The examiner then noted the Veteran served in the Army from 1964 to 1970, and that his squamous cell carcinoma first presented itself in 2010. The examiner also noted the record showed the Veteran smoked between one and two packs of cigarettes per day for roughly 50 years, before quitting when his squamous cell carcinoma was diagnosed. The examiner stated the medical literature showed tobacco use was among the strongest risk factors for oral cavity and oropharyngeal cancers, and that, thus, the prime risk factor for the Veteran's squamous cell carcinoma of the base of the tongue was his long history of cigarette smoking. The examiner next opined it was less likely than not the Veteran's squamous cell carcinoma was related to his presumed in-service exposure to herbicide agents. In this regard, the examiner stated that head and neck cancers, to include tongue cancers, have not been linked to exposure to Agent Orange or dioxins, and that the American Cancer Society had found that for mouth, throat, and sinus cancers, there is inadequate or insufficient evidence to determine whether an association exists. The examiner then opined it was less likely than not that the Veteran's squamous cell carcinoma was proximately due to or had been aggravated by his service-connected prostate cancer. In this regard, the examiner stated that the Veteran's prostate cancer was an adenocarcinoma, and that a relationship between adenocarcinomas and squamous cell carcinomas was not supported by the medical literature. The examiner also noted the Veteran's prostate cancer was diagnosed in January 2013, approximately three years after the diagnosis of squamous cell carcinoma of the base of the tongue. With regard to aggravation, the examiner noted that the Veteran had chosen to follow "active surveillance" of his prostate cancer, and had not had hormone therapy, radiation, chemotherapy, or surgical treatment that could have potentially affected any other body systems. The Board has thoroughly reviewed the record and has found no medical evidence to contradict the opinions provided by the November 2017 VA examiner. In sum, there is no evidence that the Veteran's squamous cell carcinoma originated during service or within one year of discharge. Instead, the condition was diagnosed in 2010, approximately 40 years following discharge. There is no evidence to otherwise support a relationship between the condition and service, to include the Veteran's presumed exposure to herbicide agents. There is also no evidence to support a relationship between the squamous cell carcinoma and the Veteran's prostate cancer. The only medical evidence of record which addresses these issues, the November 2017 medical opinion, weighs against the Veteran's claim, and indicates the most likely cause of the squamous cell carcinoma was the Veteran's tobacco use in the form of smoking one to two packs of cigarettes per day for approximately 50 years prior to his diagnosis. The Board notes it has considered the Veteran's own statements to the effect that his squamous cell carcinoma is related to herbicide exposure or to his service-connected prostate cancer. While the Veteran might sincerely believe this to be the case, as a layperson, he is not competent to provide an opinion concerning these matters, which require medical expertise. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Upon review of the foregoing, the Board finds a preponderance of the evidence weighs against the Veteran's claim with regard to service connection on direct, presumptive, and secondary bases. Consequently, the claim must be denied. ORDER Entitlement to service connection for squamous cell carcinoma is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs