Citation Nr: A19000260 Decision Date: 04/05/19 Archive Date: 04/05/19 DOCKET NO. 190111-1638 DATE: April 5, 2019 ORDER Service connection for metastatic squamous cell carcinoma with residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste is granted. FINDINGS OF FACT 1. The Veteran was, as likely as not, exposed to herbicide agents during service between 1980 and 1982 while regularly working on C-123 aircraft in the Air Force Reserves. 2. The Veteran’s metastatic squamous cell carcinoma and residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste are, as likely as not, causally related to her in-service exposure to herbicide agents. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for service connection for metastatic squamous cell carcinoma and residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste have been met. 38 U.S.C. §§ 101, 1116, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION As a result of the enactment of the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) (Public Law 115-55), the Department of Veterans Affairs (VA) is required to change its current appeals process. Under the authority of Public Law 115-55, and prior to the February 2019 effective date of the new AMA, VA created a test program called the Rapid Appeals Modernization Program (RAMP) to provide an option to Veterans with cases currently in the legacy system to have their appeals reviewed under the new AMA framework. The Veteran in this case chose to participate in this program, and therefore this decision has been written consistent with the new AMA framework. The Veteran selected to have her claim reviewed under the AMA’s Higher-Level Review lane option. The Veteran served in the United States Air Force from September 1973 to November 1977 and then served in the Air Force Reserves with several documented periods of active duty for training and inactive duty for training. She was also called to active duty from January 1991 to June 1991. The Veteran filed a claim for service connection for metastatic squamous cell carcinoma, difficulty swallowing, and hoarse voice with dry mouth and loss of taste in August 2015. This matter comes on appeal from December 2015, July 2018, and January 2019 rating decisions that denied service connection for metastatic squamous cell carcinoma, difficulty swallowing, and a hoarse voice with dry mouth and loss of taste. 1. Service connection for metastatic squamous cell carcinoma and residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste The Veteran asserts that her metastatic squamous cell carcinoma and residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste were the result of her being exposed to herbicide agents while serving in the Air Force Reserves. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1131; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The medical evidence reflects that the Veteran had metastatic squamous cell carcinoma in her neck/throat area which was first shown in January 2015. The Veteran had a left neck excisional biopsy in January 2015 which revealed the presence of this cancer. The record reflects that the Veteran underwent chemoradiation treatment from February 2015 to May 2015. As a result of this chemoradiation treatment, the Veteran suffered from difficulty swallowing and a hoarse voice with dry mouth and loss of taste. The question before is whether the Veteran was exposed to herbicide agents during service; and, if so, whether her cancer is related to her claimed in-service herbicide exposure. 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 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (d)(6)(i). More recently, the presumption of exposure was extended to certain veterans who served along the Korean DMZ between April 1968 and August 1971 in areas where herbicides were known to have been applied during that time period; and, to certain Air Force veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. See 38 C.F.R. § 3.307 (a)(6)(iv-v). For purposes of presumed exposure to herbicide agents, 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 1975, specifically: 2.4-D, 2.4.5T, and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). While the Veteran has asserted that she regularly worked on C-123 aircraft as an Air Force reservist between 1980 and 1982, she does not assert, and the record does not otherwise show, that she had the requisite service in the Republic of Vietnam during the Vietnam era to warrant entitlement to the presumption of herbicide exposure. Service connection may also 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. See 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 following diseases are deemed associated with herbicide agent exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran asserts that she was exposed to an herbicide agent while in service as an Air Force Reservist between 1980 and 1982. A review of the Veteran’s military personnel records, including flight logs, shows that the Veteran regularly worked on C-123 aircraft during periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) while serving as a flight nurse in the 74th Aeromedical Evacuation Squadron (AES) between 1980 and 1982. The Institute of Medicine (IOM) has studied the usage of herbicide agents in the US Armed Forces, and the results of their study were provided to the VA. Based on this study, the VA has determined that flight, maintenance, and medical crew members (including Reservists) who served in the 74th AES between 1972 and 1982 and worked on C-123s were exposed to herbicide agents. U.S. DEP’T OF VETERANS AFFAIRS, C-123 AIRCRAFT AGENT ORANGE EXPOSURE CLAIMS: AIR FORCE SPECIALTY CODES AND UNITS, (June 19, 2015). Accordingly, the Board concludes on a facts-found basis that the Veteran was exposed to herbicide agents during her service as an Air Force Reservist. When, as here, a veteran is found to have been exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The Veteran’s squamous cell carcinoma is not one of the listed diseases that is presumed to be due to herbicide exposure. However, once again, the Veteran is not precluded from establishing service-connection on a direct basis. In this regard, several doctors have opined as to the likely etiology of the Veteran’s metastatic squamous cell carcinoma. Dr. J.S. submitted a letter where she stated that upper aerodigestive tract malignancies such as cancers of the lung, bronchus, larynx, and trachea are among the malignancies related to herbicide agent exposure, and that because the Veteran’s metastatic squamous cell carcinoma was located in her neck/throat area, it was possible that this cancer was caused by exposure to herbicide agents. Dr. J.S. also pointed out that the Veteran has no other known contributing factors. Dr. R.T.S. also stated that there was a possibility that this cancer could be related to herbicide agent exposure. While these aforementioned opinions only provide a “possibility” of service connection, the Veteran has also submitted an opinion from Dr. C.B., who opined that it was at least 90 percent probable that her metastatic squamous cell carcinoma was causally related to her herbicide agent exposure. Dr. C.B. stated that herbicide agents have biologically plausible pathways to induce cancer, including esophagal squamous cell cancer. Further, Dr. C.B. stated that the Veteran’s medical history does not support a more plausible etiology for her cancer, as she does not have other risk factors for this cancer. The Board notes that the letters submitted by J.S. and R.T.S. merely suggested that it was possible that the Veteran’s metastatic squamous cell carcinoma and residuals were causally related to herbicide agent exposure. Neither doctor concluded that it was at least as likely as not there was a causal relationship between her metastatic squamous cell carcinoma and residuals and herbicide agent exposure. Dr. R.T.S. provided little rationale for this conclusion, while Dr. J.S. relied heavily on established links between herbicide agent exposure and other types of cancer. Ultimately however, the opinion provided by Dr. C.B. was the most probative because he was the only doctor to state that there was at least as likely as not a causal relationship, and he supported his conclusion with medically sound principles and research. Moreover, there is no contradictory medical evidence of record. As such, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during service; and, that it is at least as likely as not that her metastatic squamous cell carcinoma is causally related to that in-service herbicide exposure. Accordingly, service connection for metastatic squamous cell carcinoma with residuals, including difficulty swallowing, hoarse voice, dry mouth, and loss of taste is granted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Attorney Advisor