Citation Nr: 21001205 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-36 699 DATE: January 7, 2021 ORDER Entitlement to service connection for squamous cell penile cancer, to include as due to exposure to herbicide agents, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s squamous cell penile cancer is at least as likely as not due to his presumed exposure to herbicide agents while on active duty military service in the Republic of Vietnam. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for penile cancer, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1112, 1131, 1137, 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 October 1961 to August 1962 and from May 1969 to June 1987, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). On January 6, 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket in accordance with 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for squamous cell penile cancer, to include as due to exposure to herbicide agents Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran seeks entitlement to service connection for squamous cell penile cancer as due to exposure to herbicide agents while stationed in Vietnam. See, e.g., VA Form 9, Appeal to Board of Veterans Appeals, dated November 26, 2019. He contends that, while on active duty service, he was required to mix chemical components of herbicide agents and spray the herbicide agents in designated areas. Id. After a review of the record, the Board finds that the evidence supports a grant of service connection for squamous cell penile cancer. First, there is evidence of a current disability. The competent medical evidence of record demonstrates that the Veteran was diagnosed with “carcinoma of the penis[,] extending into the corpus spongiosum and to the soft tissue margin,” for which he received a partial penectomy in January 2018. See private medical treatment records dated August 10, 2018 and May 29, 2018, respectively. Second, there is evidence of an in-service event, disease, or injury, as the Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a). Specifically, the Veteran asserts that he came into contact with toxic herbicide agents such as Agent Orange in the course of fulfilling his duties while stationed in Vietnam, including mixing and spraying herbicide agents. See VA Form 9, dated November 26, 2019. Indeed, the record confirms that the Veteran was stationed in Vietnam; and, therefore, exposure to herbicide agents is conceded. See, e.g., Service Treatment Record document dated February 21, 1977. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s squamous cell penile cancer is related to his service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. As an initial matter, the Board notes that the disability for which the Veteran seeks service connection is not one that is eligible for service connection on a presumptive basis under applicable statutory provisions. See 38 C.F.R. §§ 3.307, 3.309. However, service connection may still be awarded based on competent medical evidence establishing a nexus between the Veteran’s exposure to herbicide agents and his current disability. To the extent that there is evidence against the claim, the Board notes that a clinician who examined the Veteran in August 2018 was unable to opine, with confidence, that the Veteran’s penile cancer was caused by his presumed exposure to herbicide agents. See private medical treatment records dated August 10, 2018. In another medical opinion, a physician noted the presence of a “potential link” between exposure to toxins such as those found in herbicide agents and the subsequent development of penile cancer. See private medical opinion dated July 28, 2018. Finally, the record reflects that the Veteran furnished VA with a positive nexus opinion from an oncologist who concluded that the Veteran’s squamous cell penile cancer was at least as likely as not caused by his presumed exposure to herbicide agents while on active duty military service in the Republic of Vietnam. See private medical treatment records dated May 29, 2018. Notably, the May 2018 examiner specializes in oncology, has reviewed the Veteran’s pertinent medical history, and has personally evaluated the Veteran on multiple occasions. As such, the Board finds the positive nexus opinion to be highly probative. Accordingly, the Board concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for squamous cell penile cancer, to include as due to exposure to herbicide agents, is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.