Citation Nr: 1815963	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  16-29 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Denver, Colorado


THE ISSUE

Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Saudiee Brown, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1971 to October 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 

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) (2012).


FINDING OF FACT

The evidence of record shows that the Veteran's squamous cell carcinoma is etiologically related to his in-service tatical herbicide exposure. 


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his squamous cell carcinoma is due to his presumed exposure to herbicides that was incurred in active service.  38 U.S.C. §§ 1110 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.	Duty to Notify and Assist

With respect to the Veteran's claim 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).

II.	Service Connection

In order to obtain service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313.  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309.

The Board notes that the Veteran has been diagnosed with squamous cell carcinoma.  Additionally, the Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to an herbicide agent.  38 U.S.C § 1116 (f); 38 C.F.R. § 3.307.  

Squamous cell carcinoma is not among the disabilities recognized by VA as associated with exposure to an herbicide agent.  See 38 C.F.R. § 3.309 (e).  Nevertheless, 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.  Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009) (holding a condition's absence from the presumptive list does not preclude a veteran from establishing direct service connection by showing that it is as likely as not that his condition is due to in-service herbicide exposure); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

In support of his claim, the Veteran submitted a detailed November 2015 private medical opinion which indicates that his carcinoma is related to his in-service herbicide exposure.  The Board notes that the record does not contain any evidence indicating that the Veteran's carcinoma is unrelated to his active duty service. 

Accordingly, after resolving any reasonable doubt in favor of the Veteran, the Board finds that his squamous cell carcinoma is related to active service.  Therefore, service connection for this disorder is granted.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for squamous cell carcinoma is granted.



____________________________________________
M. Donohue
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs