Citation Nr: 20032928 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-14 640 DATE: May 12, 2020 ORDER Entitlement to service connection for squamous cell carcinoma of the right neck (or its residuals) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s squamous cell carcinoma began during active service, or that it is otherwise related to an in-service injury or disease; to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma are not met. 38 U.S.C. §§ 1110, 5107; 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 Army from July 1967 to July 1969, to include service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in July 2018 for additional development which has been completed. Entitlement to service connection for squamos cell carcinoma Generally, to establish service connection there must be competent evidence showing: (1) 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 in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Private treatment records show that, in November 2004, the Veteran complained of a one-year history of a mass on the right side of his neck. A biopsy showed that he had squamous cell carcinoma. This cancerous mass was removed in 2004; a June 2019 VA examination revealed that there had been no recurrence of the Veteran’s cancer, but he had a residual scar. The current disability criterion is met. The Veteran’s service treatment records are not available for review; it appears that they were lost in a 1973 fire at the National Personnel Records Center. The Veteran, however, does not contend that his current disability had its onset during his active service. Instead, throughout his communication to VA, the Veteran has contended that his disability resulted from his in-service herbicide agent exposure. Specifically, the Veteran has argued that he is entitled to service connection for his disability because it is either a soft tissue sarcoma, or a type of non-Hodgkins lymphoma; which are presumptive diseases listed under 38 C.F.R. § 3.309(e). The Veteran’s DD-214 clearly reflects service in the Republic of Vietnam; the Veteran is presumed to have been exposed to herbicide agents. The Veteran’s claim fails, however, as the competent evidence of record does not show that the Veteran’s particular cancer is a presumptive disability, nor that it is otherwise related to herbicide agent exposure. The opinion of the June 2019 VA examiner is the most probative evidence on these points. First, as to the question of whether the Veteran’s squamous cell carcinoma is a presumptive disease, the examiner determined that it “is neither a soft tissue sarcoma nor a type of non-Hodgkin’s lymphoma.” The examiner stated that “embryologically and histologically, squamous cell carcinoma is a non-melanocytic cancer that arises from ectodermal epidermal tissue.” The examiner noted that both soft tissue sarcomas and lymphomas are “derived from mesodermal or mesenchymal cells” which are tissues that “are not histologically similar.” The examiner cited to medical research in support of this finding, and concluded that “scientific evidence supports that [the Veteran’s squamous cell carcinoma] is neither a type of soft tissue sarcoma, nor a type of non-Hodgkin’s lymphoma.” As to the question of whether the Veteran’s soft tissue sarcoma is otherwise directly related to the Veteran’s herbicide agent exposure, the examiner determined that it is less likely than not related to his active service, including Agent Orange or herbicide agent exposure. To this point, the examiner described in great detail the Veteran’s specific type of cancer, noting the Veteran’s onset of symptoms and citing to the medical records for the dates of biopsy and removal. The examiner first noted that the Veteran did not experience symptoms until 2003, and that the diagnosis of squamous cell carcinoma was not made until 2004. The examiner thus determined that a direct nexus cannot be established, as the Veteran’s disability did not develop until 30 years after his active service. With respect to the question of herbicide agent exposure, the examiner provided the primary risk factors for head and neck squamous cell carcinomas, to include tobacco use and genetics. The examiner explained that the Veteran had both genetic and tobacco use risk factors. The examiner acknowledged that squamous cell carcinoma includes the risk factor of “chemical exposure,” but that because of the difficulty in isolating single chemic agents, there are “few associations between exposure that can be considered established and casual.” With specific respect to herbicide agents, the examiner acknowledged the Veteran’s service in the Republic of Vietnam and his exposure to herbicide agents therein. However, the examiner cited to literature in support of his statement that “the overwhelming scientific evidence” including the most recent Agent Orange updated did not support a finding that squamous cell carcinoma is etiologically related to herbicide agent exposure. The Board relies heavily on this opinion. It is well-reasoned, considered the Veteran’s medical history and his lay statements, addressed the Veteran’s contentions, and was supported by numerous citations to medical literature. There is no other competent evidence in support of the Veteran’s contentions. The Veteran’s private treatment records from the time of his November 2004 biopsy and surgery did not establish an etiology for his squamous cell carcinoma. Though he submitted internet articles from the Mayo Clinic, such articles are not specific to his case, do not establish that his disability is a presumptive cancer or that it is related to herbicide agent exposure, and are ultimately outweighed by the extensive VA opinion. To the extent that the Veteran himself contends that a link exists between his squamous cell carcinoma and his active service and herbicide agent exposure, the Board finds that he is not competent to offer such an opinion. Determining the etiology of a cancer is complex, requiring specialized medical knowledge and training which the Veteran is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the Board finds that service connection for the Veteran’s squamos cell carcinoma is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for his disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.