Citation Nr: 21001436 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-11 593 DATE: January 8, 2021 ORDER Entitlement to service connection for residuals of squamous cell carcinoma with osteoradionecrosis of the jaw, to include as due to exposure to herbicide agents, lead, and asbestos, is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s squamous cell carcinoma with osteoradionecrosis of the jaw had its onset during or is etiologically related to military service, to include exposure to herbicide agents, lead, and asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of squamous cell carcinoma with osteoradionecrosis of the jaw, to include as due to exposure to herbicide agents, lead, and asbestos, have not been 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 Navy from January 1966 to October 1969, including in the Republic of Vietnam. He received the Vietnam Service Medal with Two Bronze Stars, and the Meritorious Unit Commendation Ribbon, among other decorations. The Board thanks him for his honorable service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In November 2019, the Board remanded this matter to obtain an addendum medical opinion. The record reflects that the agency of original jurisdiction (AOJ) obtained a medical opinion in January 2020. After reviewing the opinion, the Board finds that it substantially complies with the prior remand directives. Therefore, the Board will now issue a decision on the merits of the claim. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain conditions listed at 38 C.F.R. § 3.309, including “soft tissue sarcomas” as listed and defined under section 3.309(e) Note 1, service connection is presumed based on exposure to herbicide agents. For conditions not listed under 38 C.F.R. § 3.309(e), service connection may still be granted on a direct basis, if the evidence shows a link between the claimed condition and exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Entitlement to service connection for residuals of squamous cell carcinoma with osteoradionecrosis of the jaw, to include as due to exposure to herbicide agents, lead, and asbestos The Board finds that the most probative evidence does not reach the level of equipoise in the claim at issue. Therefore, service connection may not be granted. Private medical records confirm that the Veteran was diagnosed with squamous cell carcinoma in February 2013. He contends that his disorder and its residual symptoms are etiologically related to exposure to herbicide agents, lead, and asbestos during military service. The Veteran’s disorder is not on the list of conditions that are presumed to be related to herbicide agents. See 38 C.F.R. § 3.309(e). Therefore, the Board will consider the claim on a direct basis. The Veteran appeared for a VA examination in June 2015. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s squamous cell carcinoma is not related to herbicide agent exposure. The Veteran submitted lay statements in support of his appeal. In September 2015, he asserted, among other things, that his squamous cell carcinoma should be considered a “soft tissue sarcoma” for the purposes of presumptive service connection. He contended that his cancer was a slow-growing variety and was present for many years before being discovered. The Veteran submitted additional statements in March 2016. He stated, among other things, that he felt as though he was not being heard and had not been given a chance to express his beliefs. He reported that he was exposed to Agent Orange, lead, and asbestos during service, and that he believed his cancer was related to these exposures. He enclosed a copy of a letter to his U.S. senator, in which he described his experience with the VA to that point and explained his contentions about his cancer being related to service. The Veteran testified during a hearing with a decision review officer in April 2016. He stated, among other things, that he was exposed to lead paint, asbestos pipe lining, and Agent Orange during his naval service in Vietnam, and contended that his cancer was related to these exposures. He described his cancer treatment and the impacts that his cancer and residual symptoms have had on his daily activities. In September 2016, the Veteran’s representative submitted lay statements. He contended that the private medical records contained a probative medical opinion that attributed the Veteran’s cancer to herbicide agents. However, after an exhaustive review of the record, the Board did not locate a nexus opinion in the private medical records that attributed the Veteran’s disorder to military service. The Board also notes that the representative mistakenly referred to the Veteran as a “construction equipment operator”, when he was in fact a boatswain’s mate. In August 2019, the AOJ obtained a medical opinion addressing whether the Veteran’s cancer would be a “soft tissue sarcoma” under the meaning of the regulations at 38 C.F.R. § 3.309(e). The opinion provider, Dr. L.R., explained that “A sarcoma is defined as a cancer arising from the bones, and connective tissue such as fat and muscle. This cancer is considered a squamous cell carcinoma which is arises from the epithelial tissues which is not considered bone or connective tissues. So by definition squamous cell carcinoma is not a soft tissues sarcoma.” The AOJ obtained a medical nexus opinion in January 2020. The opinion provider, Dr. B.E., opined that it is less likely than not that the Veteran’s cancer had its onset during or is etiologically related to military service, to include herbicide agents, lead, and asbestos. As rationale, he explained that there is no at-least-as-likely-as-not causative link between squamous cell carcinoma and asbestos, lead, and Agent Orange when each substance is looked at individually. He further stated that there was no study found that looked at the synergistic effects of lead, asbestos, and Agent Orange exposure, but that if synergistic effects are to be considered, then the Veteran’s post-service history of smoking, alcohol use, and exposure to chemicals while farming would also need to be considered. In any event, he explained that, of the Veteran’s known exposures, only smoking and alcohol use have been shown to be an at-least-as-likely-as-not risk factor for the Veteran’s type of cancer. Dr. B.E. observed that although the Veteran’s reported history of smoking was remote, so too would have been any exposures during military service. He concluded that the only relatively recent exposure with known risk would be alcohol use, and cited to several medical studies to support his opinion. The Board has reviewed the Veteran’s private and VA medical records. However, such records do not show evidence of a nexus between his squamous cell carcinoma and military service, to include exposure to herbicide agents, lead, and asbestos. 38 C.F.R. § 3.303. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim at issue. In reaching this decision, the Board has carefully reviewed the medical evidence. Dr. B.E. opined that it is less likely than not that the Veteran’s squamous cell carcinoma with osteoradionecrosis of the jaw had its onset during or is etiologically related to military service, to include exposure to herbicide agents, lead, and asbestos. As Dr. B.E. reviewed the claims file and medical history, and rendered a persuasive medical opinion consistent with his professional expertise, the Board finds his conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has reviewed the Veteran’s lay statements. He is competent to describe how his symptoms have impacted his activities of daily living and has expressed sincere belief that his cancer was caused by environmental exposures during military service. However, the ability to link squamous cell carcinoma to an exposure during military service requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the most probative medical evidence has found that it is less likely than not that the Veteran’s cancer is etiologically related to exposure to Agent Orange, lead, or asbestos during military service. The Board is sincerely grateful for the Veteran’s honorable military service during the Vietnam War, and has carefully and sympathetically reviewed his claim of service connection for squamous cell carcinoma with osteoradionecrosis of the jaw. However, given the record before it, the most probative evidence does not reach the level of equipoise, and the appeal may not be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.