Citation Nr: 19142425 Decision Date: 06/04/19 Archive Date: 06/03/19 DOCKET NO. 15-28 992 DATE: June 4, 2019 ORDER Service connection for lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) to include as a result of exposure to herbicides is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam War era and is presumed to have been exposed to herbicide agents such as Agent Orange. 2. Lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) is not a presumptive disease associated with herbicide agent exposure. 3. The Veteran did not sustain an injury or event related to lymphadenopathy or squamous cell carcinoma of the base of the tongue (claimed as throat cancer) during service. 4. The Veteran’s lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) manifested many years after separation and is not causally or etiologically related to service, to include presumed in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1970 to August 1990. This matter is on appeal from a June 2013 rating decision. Additional evidence has been added to the claims file since the issuance of the June 2015 statement of the case (SOC), and no waiver of Agency of Original Jurisdiction (AOJ) appears of record. However, the additional evidence includes a one-page notice of the VA doctor’s separation from VA and is not pertinent to the issue on appeal. Further, the added VA treatment notes and five-page private treatment records show that the Veteran has been diagnosed with lymphadenopathy and metastatic squamous cell carcinoma at the base of the tongue. However, the VA treatment notes received prior to the June 2015 SOC noted the same diagnoses and the June 2015 SOC considered the evidence (diagnoses) and made a determination. Therefore, although the additional evidence is pertinent, the Board finds it is redundant as to the issue on appeal. Finally, the Veteran’s representative April 2019 Brief stated that there was no argument to offer and requested that the case be advanced to the Board for review and consideration. Thus, implying a waiver of AOJ consideration. As such, the Board finds that a remand for a waiver is not required. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking a claimed disability to service but is only available for the ‘chronic diseases’ specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Relevant here, the claimed throat cancer, diagnosed as lymphadenopathy and squamous cell carcinoma of the base of the tongue (malignant tumor) is considered a “chronic” disease as listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do apply. See Walker, supra. Additionally, VA has established a presumption of herbicide agent exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 that service. Certain diseases are deemed associated with herbicide agent exposure under VA law and shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a) (6) are met, 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. Of note, the claimed lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) are not diseases included in this list of diseases, and thus, the presumptive provisions do not apply. See 38 C.F.R. § 3.309(e). As discussed below, the Board notes that the list of diseases presumed to be associated with herbicide exposure includes some respiratory cancers, such as, cancer of the larynx and trachea. However, neither the evidence of record, nor the Veteran, has suggested that he is diagnosed with cancer of either the larynx or the trachea. 1. Service connection for lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer), to include as a result of exposure to herbicide agents is denied. In June 2013, VA denied entitlement to service connection for lymphadenopathy (claimed as throat cancer). The Veteran disagreed with the decision and perfected this appeal. The Veteran contends that lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) is due to his military service, to include his exposure to herbicides. See April 2019 Informal Hearing Presentation. Initially, the Veteran claims that his lymphadenopathy and squamous cell carcinoma of the base of the tongue is throat cancer, VA treatment records reference to throat cancer refers to a left neck mass noted to be lymphadenopathy and a left tongue mass diagnosed as metastatic squamous cell carcinoma at the base of the tongue. See e.g. VA May 2013 treatment notes. The Veteran’s DD-214 indicates his service awards include the National Defense Service Medal, Republic of Vietnam Service Medal with two Bronze Service Stars, and the Republic of Vietnam Campaign Medal. As such, he served in the Republic of Vietnam during the Vietnam Era. Thus, the Board finds the Veteran is presumed to have been exposed during such service to herbicide agents, to include Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As noted, lymphadenopathy and cancer at the base of the tongue (claimed as throat cancer) are not on the presumptive list of diseases associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, VA has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). The Board notes that VA has determined that a positive association exists between exposure to herbicide agents and the subsequent development of the several conditions including cancer of the larynx and/or trachea. See §3.309(e). However, the medical evidence of record does not reflect, nor has the Veteran presented any evidence showing, a diagnosis of, or treatment for, cancer of either the larynx or trachea. Accordingly, service connection for lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer), cannot be presumptively related to the Veteran’s service in Vietnam. To this end, the Institute of Medicine at the National Academy of Sciences undertakes a review every two years to determine if additional conditions should be associated with exposure to herbicide agents. In the most recent publication, Agent Orange Update 2018, it was concluded that the available epidemiologic studies were of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association between exposure to herbicide agents and the later development of cancers of the oral cavity (including lips and tongue). For example, studies failed to control for confounding, have inadequate exposure assessment, or fail to address latency; or that there was inadequate or insufficient evidence to determine association between exposure to the chemicals of interest and the health outcomes that were explicitly reviewed. Regarding direct service connection, the Veteran does not assert, and the evidence does not show, that his lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) had its onset during active duty or is related in any other cause except as due to presumed herbicide exposure. His service treatment records (STRs) are completely silent for any complaints, treatments, symptoms, or diagnosis of lymphadenopathy or squamous cell carcinoma of the base of the tongue during service, including during his April 1990 retirement examination indicating normal mouth and throat. Moreover, based on the review of the evidence, neither chronicity during service nor continuity of cancer symptoms is demonstrated, and there is no evidence of these cancers manifesting to a compensable degree within one year of service separation. To the contrary, it was not until January 2011, twenty-one years after his 1990 service separation, that a mass was removed from the Veteran’s right mandible and May 2013, when a left neck mass and left tongue mass was noted and subsequently diagnosed lymphadenopathy and cancer at the base of the tongue, See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology and can weigh against the claim). Lastly, the Veteran has not submitted any competent evidence even suggesting a nexus between his lymphadenopathy or cancer of the tongue and his active duty service, to include his presumed exposure to herbicide agents therein. The only evidence of record suggesting a link or nexus between the Veteran’s cancer and his military service, including his in-service exposure to herbicide agents, comes from the Veteran himself. Although the Veteran is competent to report having been diagnosed with cancer, he is not competent (meaning medically qualified) to either diagnose the type of cancer he has or to establish its etiology. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the Veteran’s assertion that his lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) are presumptively related to herbicide agent exposure. However, the Veteran’s lymphadenopathy and squamous cell carcinoma of the base of the tongue, by regulation, are not diseases for which service connection may be presumptively granted based on a finding of herbicide exposure in service. To the extent that the Veteran believes his cancer is a respiratory cancer presumed to be associated with herbicide exposure, this belief has no merit as he is not diagnosed with cancer of the lung, bronchus, larynx, or trachea, which are types of respiratory cancer presumed to be associated with herbicide exposure. Moreover, the Veteran himself is not competent to render a medical diagnosis. Accordingly, service connection for lymphadenopathy and squamous cell carcinoma of the base of the tongue (claimed as throat cancer) is not warranted in this case is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.