Citation Nr: 18136802 Decision Date: 09/20/18 Archive Date: 09/19/18 DOCKET NO. 16-21 288 DATE: September 20, 2018 ORDER Entitlement to service connection for squamous cell carcinoma of the right base of the tongue (pharyngeal cancer) due to exposure to herbicide agents (Agent Orange) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s pharyngeal cancer is related to service, to include exposure to Agent Orange. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for pharyngeal cancer has been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to February 1971, to include in-country service in the Republic of Vietnam. The Veteran is a recipient of the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for pharyngeal cancer due to exposure to Agent Orange Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran’s Form DD 214 documents his service in the Republic of Vietnam. Therefore, he is presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service connection for any of the diseases listed in 38 C.F.R. § 3.309(e) will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, pharyngeal cancer is not a disability associated with exposure to herbicides under 38 C.F.R. § 3.309(e). Although it is not a disease presumptively related to herbicide exposure, it may nonetheless be considered on a direct basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 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 or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Service treatment records (STRs) are silent as to any complaints, treatments, or diagnosis of pharyngeal cancer. VA treatment records in November 2011 reflect that the Veteran’s tumor had progressed markedly. His right oropharynx tumor filled his throat and extended down to the tip of his epiglottis, but remarkably did not interfere with his breathing. In a May 2012 letter, Dr. N.D.G., the Veteran’s VA attending surgeon specializing in otolaryngology, stated that the Veteran was diagnosed and treated for squamous cell carcinoma of the oropharynx, right base of the tongue. The physician noted that the Veteran was exposed to Agent Orange, and that its active compound, dioxin, was a well-known carcinogen. He explained that he had personal experience with preclinical research using dioxin, which clearly caused transformation of premalignant oral cell linea to malignancy. He stated that squamous cell carcinoma of the larynx and lungs had been associated with Agent Orange exposure, and he was “convinced that Agent Orange exposure was at least a co-factor in the development of other squamous cell carcinoma of the upper aerodigestive tract including the oropharynx.” Thus, in this case, the VA physician opined that “it was reasonable to conclude that AO exposure contributed to the development of cancer.” VA treatment records in March 2013 reflect that the Veteran was one-year out from chemotherapy for his Stage IVa squamous cell carcinoma of the base of the tongue, HPV+, status post concurrent chemoradiation therapy. He was doing better, but he still had fullness on the right neck. A May 2013 VA examination report documents a diagnosis of squamous cell carcinoma of the base of the tongue. The VA examiner opined that it was less likely than not incurred or caused by exposure to Agent Orange, and most likely due to HPV. The examiner noted that VA guidelines had not established squamous cell carcinoma of the base of the tongue as definitively caused by Agent Orange. In June 2014, the Veteran submitted a letter from his private physician, Dr. J.M.H., an associate professor in radiation oncology. Dr. J.M.H. referred to two medical articles, one which compared the mortality among veterans of the Vietnam War to males in the US population, to include due to oral cavity and pharynx cancer which had an adjusted relative risk for mortality of 1.68; and the other documented a mortality ration of 2.95 in German male workers exposed to phenoxy herbicides and dioxins, and diagnosed with cancer of the buccal cavity and pharynx cancer. The physician noted that cancer of the base of the tongue was considered pharynx cancer. He opined that based on these articles, it was more likely than not that Agent Orange played a role in the development of the Veteran’s cancer. Upon review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s pharyngeal cancer is related to his in-service exposure to Agent Orange. The VA examiner provided a negative nexus opinion. Specifically, the May 2013 VA examiner opined that the Veteran’s pharyngeal cancer was most likely due to his HPV, and that VA guidelines had not established squamous cell carcinoma of the base of the tongue as definitively caused by Agent Orange. Nevertheless, Drs. N.D.G., the Veteran’s VA attending surgeon, and J.M.H., an associate professor in radiation oncology, opined that Agent Orange more likely than not played a role in the development of the Veteran’s cancer. Specifically, Dr. N.D.G. discussed his experience with preclinical research using dioxin, which clearly caused transformation of premalignant oral cell linea to malignancy; and Dr. J.M.H. referenced medical articles showing a link between mortality rates of people exposed to dioxin, who developed pharyngeal cancer, to the normal population. The Board notes that the May 2013 VA examiner did not address Dr. N.D.G.’s opinion in his rationale. The Board finds that Drs. Dr. N.D.G.’s and Dr. J.M.H.’s opinions are entitled to at least as much probative weight as the VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). (Continued on the next page)   The evidence is thus at least evenly balanced as to whether the Veteran’s pharyngeal cancer is related to his presumed exposure to Agent Orange. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for squamous cell carcinoma of the right base of the tongue is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted, the fact this particular cancer is not on the list of diseases presumed service connected in veterans exposed to Agent Orange does not preclude service connection on a direct basis, as shown in this case. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (“To [deny] service connection... on the basis that it is not likely there is any nexus to service solely because the statistical analysis (in an IOM report) does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel