Citation Nr: 20005887 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 18-15 364 DATE: January 23, 2020 ORDER Entitlement to service connection for throat cancer, to include tongue squamous cell, is granted. FINDING OF FACT The Veteran’s tongue squamous cell is related to in-service herbicide and asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for throat cancer, to include tongue squamous cell have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1965 to September 1967 with service during the Vietnam Era. The Veteran died in August 2018, and the appellant, the Veteran's surviving spouse, has been substituted for the Veteran for the pending claim. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Entitlement to service connection for throat cancer, to include tongue squamous cell. The appellant contends that the Veteran’s tongue cancer was a result of his active duty service, to include exposure to herbicide agents and asbestos. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). 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 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are now included in the amended/rewritten VA Adjudication Procedure Manual. The Manual provides that Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in M21-1, IV.ii.1.I.3.f, and a diagnosed disability that has been associated with in-service asbestos exposure. The Manual also provides a table to determine the probability of asbestos exposure by military occupational specialty (MOS). The Manual further states that, if an MOS is listed as minimal, probable, or highly probable in the table, concede asbestos exposure for purposes of scheduling an examination. First, both VA and private treatment records clearly demonstrate that the Veteran was diagnosed with throat and tongue cancer. The Board concedes that the Veteran was exposed to both herbicides and asbestos during his active duty service. The Veteran served on the U.S.S. Oklahoma City from February 1966 until his discharge in September 1967. In 1966 the U.S.S. Oklahoma City provided direct naval gunfire support in Vietnam. The U.S.S. Oklahoma City temporarily operated in the mouth of the Thach Han River, an inland waterway of Vietnam, from July 20, 1966 to July 21, 1966, while the Veteran was aboard. See M21-1, IV.ii.1.H.2; see also www.publichealth.va.gov/exposures/agentorange/shiplist. Because the Veteran served in a vessel operating in the inland waterways of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides. Moreover, aboard the U.S.S. Oklahoma City that Veteran served as a machinist mate. The Veteran lived, worked, and slept in areas with asbestos. As such, the Board concedes that the Veteran was exposed to asbestos during his military service. Therefore, the question for the Board is whether tongue cancer is related to his active duty service, to include exposure to herbicides and asbestos. The Veteran’s claim has been denied on the basis that his current tongue cancer is less likely than not related to his active service. There are competing opinions as to this issue. In support of his contention, the Veteran has submitted an opinion from C. King, PhD, MD. Dr. King concluded that exposure to herbicides and asbestos contributed to the Veteran’s tongue cancer. He cited epidemiologic studies that have shown consistently that asbestos exposure is associated with squamous cell cancers of the base of the tongue. Again, there is a contrary opinion to Dr. King’s conclusion. The Board refrains from summarizing it here, however, as in weighing these opinions, the evidence would be at least in equipoise. In such situations, benefit of the doubt must be afforded to the appellant. Doing so here resolves the final element of the service connection framework in her favor. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Higgins, 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.