Citation Nr: 20047121 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 18-31 708 DATE: July 14, 2020 ORDER Entitlement to service connection for mucoepidermoid carcinoma of the left posterior palate is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s mucoepidermoid carcinoma of the left posterior palate was related to exposure to depleted uranium in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for mucoepidermoid carcinoma of the left posterior palate are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2002 to July 2006. The Veteran’s DD Form 215 noted service in Iraq and Kuwait. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim of service connection for mucoepidermoid carcinoma (claimed as related to depleted uranium exposure in Iraq). In July 2020, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of that hearing is not necessary given that the Board is granting the benefit sought in full. Entitlement to service connection for mucoepidermoid carcinoma of the left posterior palate Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). The Veteran contends his mucoepidermoid carcinoma was related to depleted uranium he was exposed to in service as an Armor Crewman in Iraq during a firefight. A May 2015 private treatment record indicated the Veteran underwent surgery for a carcinoma of the left posterior palate in April 2015. Thus, the Veteran meets the current disability requirement. In May 2016, the Veteran submitted a pamphlet produced by the VA with information for Veterans on depleted uranium. The pamphlet defined depleted uranium as a byproduct of the uranium enrichment process for nuclear fuel production that has approximately 60 percent of the radioactivity and the same chemical toxicity as natural uranium. Since the Gulf War, depleted uranium projectiles have been used by U.S. forces due to their superior ability to penetrate armor. The pamphlet noted that Veterans potentially affected by uranium exposure include Gulf War Veterans exposed to depleted uranium through friendly fire and Veterans who served in Bosnia, the Gulf War, and Operation Enduring Freedom/Operation Iraqi Freedom. The pamphlet also detailed that exposure to large amounts of radiation can negatively affect health, and depleted uranium is a potential health hazard if it enters into the body through embedded fragments, contaminated wounds, inhalation, or ingestion. For example, when a projectile made with depleted uranium penetrates a vehicle, small pieces of depleted uranium are created. These fragments can scatter and become embedded in muscle and soft tissue. Furthermore, in addition to depleted uranium wounds, soldiers exposed to depleted uranium in struck vehicles may inhale or swallow small airborne depleted uranium particles. However, the potential for negative health effects is related to the amount of depleted uranium in a person’s body. Simply riding in a vehicle with depleted uranium weapons or shielding does not expose individuals to significant amounts of depleted uranium or external radiation. The Veteran’s representative contended in the Veteran’s June 2018 substantive appeal (VA Form 9) that the Veteran breathed in depleted uranium when engaged in a firefight where depleted uranium rounds were fired and his tank was hit. In support of this contention, the Veteran’s representative submitted literature from the VA Public Health page indicating “Some Gulf War, Bosnia, Operation Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn Veterans who may have been exposed to depleted uranium are those were: on, in, or near vehicles hit with friendly fire; entering or near burning vehicles; near fires involving depleted uranium munitions; or salvaging damaged vehicles.” The Veteran’s representative also submitted literature from the American Cancer Society that listed the main risk factors for mucoepidermoid carcinoma as older age, male gender (more prevalent in men than women), family history, and radiation exposure. The Veteran’s representative argued that as the Veteran did not have a family history of mucoepidermoid carcinoma and received the diagnosis under the age of 30, it was as likely as not that his exposure to depleted uranium caused his mucoepidermoid carcinoma. The Veteran testified during his July 2020 Board hearing that his physician advised that his mucoepidermoid carcinoma was environmental and that the tumor began during service. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s mucoepidermoid carcinoma of the left posterior palate was related to exposure to depleted uranium in service. The Veteran’s statements and the evidence of record regarding exposure to depleted uranium in service are competent and credible, particularly in light of the Veteran’s Military Occupational Specialty as an Armor Crewman and his confirmed service in Iraq. Accordingly, the Veteran’s statements regarding his in-service exposure to depleted uranium are credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the in-service injury or disease requirement has been met. The medical literature submitted by the Veteran and his representative notes that there is a relationship between exposure to large amounts of depleted uranium and mucoepidermoid carcinoma. The Court has indicated that treatise evidence may suffice to establish nexus in instances where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.”  Sacks v. West, 11 Vet. App. 314, 317 (1998). The literature here discusses the relationship between depleted uranium exposure and mucoepidermoid carcinoma with a degree of certainty that there is at least plausible causality large amounts of radiation exposure can cause mucoepidermoid carcinoma, even more so given that the Veteran did not have a family history of mucoepidermoid carcinoma and was under the age of 30 when given the diagnosis. Therefore, this literature is of significant probative weight pursuant to the reasoning of Sacks. A VA examination was not conducted in this matter. The Veteran also testified during his July 2020 Board hearing that he was informed by his private physician that his mucoepidermoid carcinoma was environmental and that the tumor began during service. The Veteran is competent to relate what the Veteran’s physician told him regarding a possible nexus, and there is no indication in the evidence of record that the Veteran lacks credibility.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). Thus, his statement is afforded significant probative weight. Therefore, the medical literature submitted by the Veteran and his representative, in conjunction with the testimony from the Veteran regarding the physician’s statement of a nexus between the Veteran’s in-service depleted uranium exposure and his mucoepidermoid carcinoma, are entitled to significant probative weight. Sacks, 11 Vet. App. at 317 (medical article and treatise evidence can provide important support when combined with an opinion of a medical professional).  (Continued on the next page)   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s mucoepidermoid carcinoma of the left posterior palate was related to his in-service uranium exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for mucoepidermoid carcinoma of the left posterior palate is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.