Citation Nr: 21001823 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-35 808 DATE: January 11, 2021 ORDER Entitlement to service connection for squamous cell carcinoma as due to Agent Orange exposure is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have exposure to Agent Orange. Squamous cell carcinoma is not among those diseases listed as a presumptive disease for herbicide exposure. 2. The probative evidence of record supports a finding that Veteran’s squamous cell carcinoma has been linked to the Veteran’s active service, to include in-service exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in a March 2019 videoconference hearing. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in August 2019 for additional development. It now returns for further appellate review. The Board notes that the Veteran was granted service connection for post-traumatic stress disorder in the July 2020 rating decision. As that award constitutes a full grant of the benefit sought, the Board no longer has jurisdiction over that claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for squamous cell carcinoma The Veteran’s seeks service connection his squamous cell carcinoma due to Agent Orange exposure. See November 2014 VA Form 21-526EZ, Fully Developed Claim. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service 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). VA regulations provide that certain diseases associated with exposure to herbicide agents, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a). Additionally, veteran may be service connected for a condition relating to exposure to herbicide agents even if the condition is not a presumptive condition, if proven on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Relevant Facts and Analysis With regard to the first element of service connection, medical evidence of a current disability has been established because the Veteran has a current diagnosis of squamous cell carcinoma that was confirmed by a shave biopsy in November 2014. See November 2014 VA Shave Biopsy Report. With respect to the second element of service connection, in-service incurrence aggravation of a disease or injury, the Veteran’s military personnel records reflect that the Veteran has qualified service in Vietnam and the Veteran’s exposure to Agent Orange has been conceded. See March 2017 Rating Decision (granting service connection for Parkinson’s disease associated with herbicide exposure). Thus, the second element is satisfied. Thus, the dispositive issue in this case is whether the Veteran’s squamous cell carcinoma is related to his in-service Agent Orange exposure. Here, although the Veteran has qualifying service in Vietnam, presumptive service connection for exposure to herbicide agents does not include squamous cell carcinoma, and as such, service connection for this cancer is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). The claim was denied by the Regional Office for this reason. However, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d 1039. In this respect, as correctly noted by the Veteran’s representative in its September 2020 Appellate Brief, the record contains a positive nexus opinion. The Board agrees that grant of service connection is warranted. Specifically, in a December 2019 VA medical opinion, the VA examiner opined that the Veteran’s squamous cell carcinoma is at least as likely as not related to exposure to Agent Orange. See December 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner noted that the U.S. military sprayed herbicide agents in Vietnam from 1962 and 1971 and stated that [t]he most-used chemical mixture sprayed was Agent Orange, which at the time of use was contaminated with 2, 3, 7, 8-tetrachloraodibenzodioxin (TCDD), the most toxic [] dioxin.” The examiner also cited a 2014 pilot study which investigated whether exposure to TCDD was associated with increased non-melanotic invasive cancer. See December 2019 VA Medical Opinion DBQ. The pilot study found that “[t]he rate of non-melanotic invasive skin cancer in TCDD-exposed veterans was 51 percent – about twice as high as the rate expected in men of similar age group.” Id. The examiner stated that the Veteran was stationed at Da Nang Air Base in Vietnam for 13 months during active service and stated that Da Nang Air base has dioxin contamination up to 350 times higher than international recommendations. See December 2019 VA Medical Opinion DBQ. Thus, based on the 2014 pilot study findings and the Veteran’s conceded exposure to Agent Orange, the VA examiner concluded that the Veteran’s squamous cell carcinoma was at least as likely as not related to his exposure to Agent Orange based on his conceded exposure to Agent Orange herbicides. The Board finds that the December 2019 medical opinion is entitled to significant probative weight because the opinion was based on an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the VA medical opinion applied the 2014 pilot study findings to the facts of the Veteran’s claim. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018)(holding that an opinion that provide rationale specific to the Veteran’s particular medical condition and circumstances is an adequate opinion). Importantly, the December 2019 VA medical opinion is uncontroverted. Accordingly, the Board finds the evidence supports a finding that the Veteran’s squamous cell carcinoma is related to herbicide exposure. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a grant of service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.