Citation Nr: 20031683 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 17-20 053 DATE: May 5, 2020 ORDER Entitlement to adenocarcinoma of the left neck is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era and is presumed to have been exposed to herbicides. 2. Resolving reasonable doubt in favor of the Veteran, adenocarcinoma of the left neck is causally related to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for adenocarcinoma of the left neck have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1966 to February 1968, including service in the Republic of Vietnam. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. In August 2019, the Board remanded this claim for additional development. 1. Entitlement to adenocarcinoma of the left neck, claimed as due to Agent Orange exposure Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by 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) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). In some cases, service connection may be established by showing evidence of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Malignant tumors are listed among the chronic diseases in 38 C.F.R. § 3.309 (a). Moreover, certain chronic diseases, including malignant tumors, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military service, a number of diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Adenocarcinoma is not one of the specified diseases. A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (June 12, 2007). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a current diagnosis of adenocarcinoma. Medical records reflect that the Veteran identified a mass in his neck in August 2014 and was initially diagnosed with squamous cell carcinoma. In November 2014, the diagnosis was changed to poorly differentiated adenocarcinoma. Treatment records noted that immunochemistry suggested a possible salivary adenocarcinoma, thyroid, or urothelial type of malignancy. Records noted that the Veteran had a 30-year history of tobacco use prior to 1996. He denied using chewing tobacco. There is conflicting evidence on the issue of a medical nexus to Agent Orange exposure. The Veteran had a VA examination in September 2019. The examiner diagnosed adenocarcinoma with metastasis to the cervical lymph nodes status post radical neck dissection. The examiner noted that the Veteran used tobacco for more than a quarter of a century. The examiner opined that the claimed condition is less likely than not related to Agent Orange exposure during service. The examiner cited a study which showed that head and neck cancer is related to tobacco use and that the risk for such cancers is 70 to 80 percent higher for smokers than for non-smokers. The examiner opined that the Veteran’s condition is more likely than not related to long-term tobacco use. In June 2019, the Veteran submitted a medical opinion from a private physician. The physician opined that it is reasonable to consider Agent Orange as causing the Veteran’s cancer. The rationale provided for the opinion was that Agent Orange has been shown to be a statistically significant cause of cancers of the head and neck. In March 2020, the Veteran submitted a February 2020 letter from his private treating oncologist, who noted that the Veteran had been treated for adenocarcinoma of the head and neck that involved lymph nodes of the left neck. Based on the cancer type, although the primary disease site was not found, the consensus from the oncologists was that it had arisen from a salivary gland. The oncologist opined that based on the cancer type and likely origin, the Veteran’s head and neck adenocarcinoma was most likely due to his exposure to Agent Orange during service. In conjunction with this medical opinion, the Veteran submitted a medical article from the American Cancer Society Cancer journal. The article described a cohort study of cancer incidence in Korean veterans who served in Vietnam. The study found that exposure to Agent Orange significantly increased the risk of salivary cancers. The journal article provides probative evidence with respect to the issue of a nexus to service. Medical treatise evidence can provide probative support for a VA claim in certain instances. Mattern v. West, 12 Vet. App. 222, 228 (1999). A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks v. West, 11 Vet. App. 314, 317 (1998). The journal article is probative as to a medical nexus in this case because it is combined with an opinion from a medical professional. Here, considering that there is equally probative medical evidence both for and against the Veteran’s claim, the Board finds that the evidence is at least in equipoise that the Veteran's adenocarcinoma is related to his in-service exposure to herbicides. As such, service connection is warranted for adenocarcinoma of the left neck. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.