Citation Nr: 21001234 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-58 248 DATE: January 7, 2021 REMANDED Entitlement to service connection for oral cavity cancer, to include residuals thereof, and as due to herbicide agents, is remanded. REASONS FOR REMAND The Veteran had active service from June 1963 to June 1971, with service in the Republic of Vietnam. The Veteran’s claim was previously before the Board in May 2019. At that time, the Board remanded the Veteran’s claim for additional development, including a VA examination. While the Board regrets the additional delay associated with this remand, based on a review of the evidence of record, the Board finds that the Veteran must be provided an additional VA examination. 1. Entitlement to service connection for oral cavity cancer, to include residuals thereof, and as due to herbicide agents is remanded. The Veteran contends that his floor of mouth cancer is related to his in-service exposure to herbicide agents, or alternatively to his service-connected lung cancer. The record reflects that the Veteran was diagnosed with squamous cell carcinoma of the anterior floor of the mouth, a cancer of the oral cavity, in 2000. VA medical records show that the Veteran has undergone resection and radiation therapy (XRT) to treat this condition. The record also shows recurrence in the left neck, treated with resection, radiation therapy, and chemotherapy. The Veteran has been granted service connection for lung cancer due to exposure to herbicide agents, which has been presumed based on his active service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Although cancer of the oral cavity is not one of the diseases that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the Veteran may still be entitled to service connection on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). The Veteran has asserted that his cancer of the oral cavity is analogous to his lung cancer that is presumptively associated with exposure to herbicide agents. As such, the Veteran was provided a VA examination in January 2020. At the January 2020 examination, an examiner determined that the Veteran’s condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that oral neoplasms have not been strongly linked to Agent Orange exposure. The examiner noted that the Veteran was diagnosed with an oral squamous cell carcinoma in 2000, nearly 30 years after military release. As such, there was insufficient medical evidence of an oral neoplasm condition while in service. The examiner continued, noting that there was also insufficient evidence of an oral condition within one year of discharge. The Veteran’s separation examination was silent for any oral condition, or symptomology immediately post military release. Medical records were silent for any continuity of care pertaining to the Veteran’s current oral condition related to military service. The examiner concluded that the Veteran’s current oral squamous cell carcinoma was also not an Agent Orange presumptive condition, and as such, no nexus was established. In the Veteran’s December 2020 appellate brief, he argued, through his representative, that the January 2020 VA examination did not speak to the nature and cause of his oral cancer, nor any relation to his service-connected disabilities. The Veteran further contended that there was current medical and scientific data that prove there has been reported occurrences of lung cancer metastasis to the oral cavity. In consideration of the aforementioned, the Veteran argued that a more thorough and comprehensive opinion surrounding the etiology of his oral cancer was warranted, especially considering the scientific data suggesting that oral cancer may be directly caused by his service-connected lung cancer. The Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran has undergone a VA examination, but the examiner did not address the issue of secondary service connection. Accordingly, the Board finds that a remand is necessary for a new VA examination that considers this theory of entitlement. On remand, the examiner should address the Veteran’s contention that there is medical and scientific data that prove there are occurrences of lung cancer metastasis to the oral cavity. In addition, the examiner should attempt to provide an opinion regarding the etiology of the Veteran’s oral cavity cancer. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current oral cavity cancer. An examination may be scheduled if the clinician deems it necessary, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner must opine to the following: (a.) Whether the Veteran’s oral cavity cancer, to include residuals, is at least as likely as not 1) proximately due to his service-connected lung cancer, or 2) aggravated beyond its natural progression by his service-connected lung cancer. *The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.