Citation Nr: 19153993 Decision Date: 07/12/19 Archive Date: 07/12/19 DOCKET NO. 17-29 171 DATE: July 12, 2019 ORDER Entitlement to service connection for throat cancer, diagnosed as oropharyngeal squamous cell carcinoma involving the left base of the tongue with metastasis to the left cervical nodes, is granted. FINDING OF FACT The Veteran's throat cancer, diagnosed as oropharyngeal squamous cell carcinoma involving the left base of the tongue with metastasis to the left cervical nodes, is at least as likely as not due to his exposure to DDT during service. CONCLUSION OF LAW The requirements to establish entitlement to service connection for throat cancer, diagnosed as oropharyngeal squamous cell carcinoma involving the left base of the tongue with metastasis to the left cervical nodes, have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from January 1961 to November 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. Regarding the Veteran's service connection claim for throat cancer, the Board sought an expert medical opinion through the Veterans Health Administration (VHA) in June 2018. In April 2019, the Veteran and his representative were sent a copy of the resulting July 2018 opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903. That same month, the Veteran submitted evidence and a request for the Board to immediately proceed with the adjudication of his appeal. 1. Entitlement to service connection for throat cancer, to include as due to exposure to herbicide agents and/or exposure to chemicals. Service connection may be granted for a 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). To establish a right to compensation for a present disability, a Veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that 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. 38 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that 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). The Veteran contends that he has throat cancer that is directly related to his exposure to herbicide agents, and/or dichlorodiphenyltrichloroethane (DDT) during his active duty service. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to throat cancer. No mouth or throat abnormalities were noted in the January 1961 enlistment examination. In addition, the Veteran denied any history of throat trouble or a tumor, growth, cyst, or cancer in the January 1961 Report of Medial History. The mouth and throat were still marked as normal in the October 1964 separation examination, and there continued to be no relevant complaints in the October 1964 Report of Medical History. Thus, there is no indication of onset of cancer in service. However, the Veteran’s military personnel records document that he had active duty service in the Republic of Vietnam from February 1963 to April 1963. Consequently, his in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). In addition, the Veteran has reported that every night during his tour of duty in the Republic of Vietnam, the bunk area of his tent would be sprayed with DDT beneath his mosquito netting. Given the circumstances of the Veteran’s service, the Veteran’s assertion of in-service exposure to DDT is accepted as credible and consistent with his service and exposure to DDT in service is established. 38 U.S.C. § 1154(a). Further, the Veteran has a diagnosis of throat cancer, thus, a current disability is established. With regard to a nexus, after service, a May 2016 treatment record stated that the Veteran had first noted a neck mass on the left side three weeks ago. The Veteran underwent a CT scan that demonstrated a mass on the left side of his neck that was suspicious for malignancy. The CT scan also showed a mass in the tongue base that was suspicious. The record noted that the Veteran had smoked approximately 2 cigars per day for 60 years, but he had quit smoking 5 months before the visit. The record further stated that the Veteran drank approximately 2 drinks each week. Later in June 2016, a private treatment record stated that the Veteran had a left neck mass as well as a mass on the base of his tongue. A biopsy of the left neck mass revealed non-keratinizing squamous cell carcinoma. The immunohistochemistry showed a strong p16 marking. The record reported that the p16 immunohistochemical marker was a surrogate marker for HPV, and a strong p16 expression was commonly seen in HPV-related squamous cell carcinoma of oropharyngeal origin. Also in June 2016, a biopsy of the left base of tongue yielded a final pathologic diagnosis of invasive squamous cell carcinoma, moderately differentiated. A subsequent July 2016 private treatment record stated that a June 2016 biopsy of the tongue base showed skin cell carcinoma. The impression was primary malignant tumor of the pharynx, and the record stated that the Veteran had a cell carcinoma of the tongue base with metastatic disease to the left neck. Another July 2016 private treatment record noted an impression of FDG-avid lesion of left aspect of tongue base that was compatible with malignancy. In addition, an enlarged FDG-avid left level II and III of the cervical lymph nodes were suspicious of metastatic adenopathy. In July 2018, a VHA opinion regarding the Veteran's claim was provided by Dr. Y., a dermatologist. Dr. Y. noted that the Veteran was diagnosed with squamous cell carcinoma of the left base of the tongue in 2016, and there was an associated left neck mass. A CT was performed that revealed a tongue lesion and enlarged left cervical lymph nodes. A biopsy of the left neck mass also showed squamous cell carcinoma with strong p16 marking. Dr. Y. noted that the Veteran appeared to have had an oropharyngeal squamous cell carcinoma involving the left base of the tongue with metastasis to the left cervical nodes. Dr. Y. explained that these cancers were primarily caused by tobacco and alcohol. Infection with HPV was another etiological factor, and the finding of p16 from the biopsy would suggest a correlation in the Veteran's case. Dr. Y. emphasized that the Veteran had a more than 50 year smoking history. In addition, oropharyngeal cancers had not yet been included in diseases associated with Agent Orange. As the Veteran had other risk factors for the development of his cancer, Dr. Y. concluded that it was not likely that his cancer was related to in-service exposure to herbicides or insecticides. The Board finds that Dr. Y.’s opinion is probative as Dr. Y. considered the pertinent evidence of record and supported his conclusion with a complete explanation. Another July 2018 medical opinion from Dr. T. was subsequently received by VA. The opinion reflects that Dr. T. worked in hematology/oncology, and she noted that the Veteran had been her patient since July 2016. Dr. T. stated that the Veteran had been diagnosed with squamous cell carcinoma of the base of the tongue in June 2016. Dr. T. also noted that she was aware of the details noted above regarding the extent of the Veteran’s exposure to DDT in Vietnam. Dr. T. explained that DDT had been classified as "probably carcinogenic to humans." Dr. T. added that although the exact cause of the Veteran's cancer was unclear, DDT could have contributed given the Veteran's prolonged exposure to the chemical. After considering the opinion as a whole and in the context of the record, the Board finds that the Dr. T.'s conclusion provides probative value as it addresses the medical issues in this case and was based on an analysis of the evidence and current medical understanding. See Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion); see also Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The Board acknowledges that Dr. T. phrased the opinion with slightly speculative language. However, Dr. T.’s role as the Veteran’s hematology/oncology physician since July 2016 suggests that she had knowledge of the pertinent elements of the Veteran’s medical history, including his smoking and alcohol usage history as well the information regarding the p16 immunohistochemical marker from the June 2016 biopsy results. The Board finds it significant that despite Dr. T.’s understanding of the Veteran’s medical history, she did not conclude that the presence of other risk factors ruled out the possibility that DDT exposure had contributed to the development of the Veteran’s cancer. In fact, she indicated that it was not possible to pinpoint any single cause of the Veteran’s cancer. In considering the opinions provided by Dr. Y. and Dr. T., the Board finds that the evidence is in equipoise as to whether the Veteran’s squamous cell carcinoma of the base of the tongue is related to his exposure to DDT during active service. Resolving all doubt in favor of the Veteran, a nexus is established, and entitlement to service connection for throat cancer, diagnosed as oropharyngeal squamous cell carcinoma involving the left base of the tongue with metastasis to the left cervical nodes, is granted. 38 C.F.R. §§ 3.102, 3.303. As the Board is granting direct service connection on this basis, it is unnecessary to consider any other theory of entitlement advanced. (continued on next page) GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, 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.