Citation Nr: 21005152 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-04 273 DATE: January 29, 2021 ORDER Entitlement to service connection for squamous cell carcinoma of the tongue is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. Squamous cell carcinoma of the tongue did not have its onset during the Veteran’s active service, and is not otherwise etiologically related to such service, to include herbicide exposure sustained while serving in the Republic of Vietnam. 2. The Veteran died in December 2010, and his death certificate listed his cause of death as cancer. 3. The Veteran was not service-connected for any disability at the time of his death, and the cause of his death was not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma of the tongue have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107 (2018); 38 C.F.R. §§ 3.303, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1964 to August 1968, to include service in the Republic of Vietnam. The Veteran died in December 2010, and the appellant is his surviving spouse. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board, most recently in August 2020, at which time the issues on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection – Squamous Cell Carcinoma of the Tongue At the outset, the Board notes that the appellant has not alleged, and the evidence does not otherwise show, that the Veteran’s squamous cell carcinoma of the tongue had its onset during the Veteran’s active service. Rather, the appellant claims that the Veteran’s tongue was the result of his exposure to herbicides while serving in the Republic of Vietnam. The Board notes that the record shows that the Veteran did in fact have service in the Republic of Vietnam. As such, his exposure to herbicides during active service is presumed. However, while the provisions of 38 C.F.R. § 3.309 (e) include respiratory cancers (specifically cancer of the lung, bronchus, larynx, or trachea) as diseases that are presumed related to herbicide exposure, cancer of the tongue and other cancers related to the mouth are not listed. As such, the Veteran’s squamous cell carcinoma of the tongue is not presumed to be related to his exposure to herbicides while serving in the Republic of Vietnam. However, the appellant is not precluded from establishing entitlement to service connection for disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the question for the Board is whether the Veteran’s squamous cell carcinoma of the tongue was at least as likely as not related to in-service herbicide exposure. VA Medical Center treatment notes of record show that the Veteran was diagnosed with squamous cell carcinoma of the tongue in November 2009. In a February 2010 VA Medical Center oncology treatment note, it was noted that the Veteran had stage III tongue cancer, that he was a non-smoker, and that he was likely human papillomavirus (HPV) positive. After attempts at both radiation and chemotherapy, which the Veteran did not tolerate well, the Veteran was placed in palliative care and he expired in December 2010. A VA medical opinion regarding the nature and etiology of the Veteran’s squamous cell carcinoma of the tongue was obtained in September 2019. At that time, the VA examiner opined that it was less likely as not that the Veteran’s squamous cell carcinoma of the tongue was incurred in or caused by an in-service injury, event, or illness. In so finding, the examiner noted that the Veteran did not have any in-service risk factors for the development of squamous cell carcinoma of the tongue. Further, the examiner noted that squamous cell carcinoma was not a conceded condition of herbicide exposure. In an April 2020 addendum medical opinion, the VA examiner opined that it was less likely as not that the Veteran’s squamous cell carcinoma of the tongue was incurred in or caused by his active service, to include his exposure to herbicides in the Republic of Vietnam. In so finding, the VA examiner noted that the opinion was made based on a review of the body of evidence, relevant medical literature, and in accordance with accepted medical principles. The examiner noted that the appellant argued that herbicides inhaled with air pass by the tongue, and that therefore, tongue cancer was also caused by herbicide exposure. The examiner found that such contention was not supported by scientific evidence. In this regard, the examiner noted that the National Academy of Sciences had assessed the overall body of relevant published, peer-reviewed medical literature and had determined that there was insufficient evidence of an association between herbicides sprayed from 1962 to 1971 by the U.S. military in the Republic of Vietnam and the development of squamous cell carcinoma of the tongue. Specifically, the examiner noted that existing evidence from all published studies conducted among Veterans or various occupational cohorts reporting the incidence of, or mortality from cancers of the nose, oral cavity, or pharynx was largely inconclusive. Rather, the examiner found that other risk factors for squamous cell carcinoma of the tongue was more likely the result in this case. Specifically, the examiner noted risk factors of HPV, male gender, genetic susceptibility, and secondhand smoke exposure. The examiner noted that the medical records showed that the Veteran’s father was a smoker and had throat cancer, which raised the possibility of the Veteran’s gender, secondhand smoke exposure, and genetic susceptibility as risk factors in this Veteran. Further, the examiner noted that epidemiologic and molecular studies had identified HPV as a causative agent in many patients with oropharyngeal squamous cell carcinomas that did not have the traditional risk factors associated with head and neck cancers (e.g. Smoking and alcohol consumption). The examiner noted studies that suggested that HPV accounted for 70 to 80 percent of oropharyngeal cancer cases in North America and Europe. In conclusion, the examiner stated that given the absence of data showing herbicides as a causative risk factor, the appellant’s lay statements that the Veteran did not drink alcohol or smoke tobacco, the absence of other occupational environmental hazard exposure, and the current knowledge of the above discussed risk factors; it was more likely than not that the Veteran’s squamous cell carcinoma of the tongue was the result of HPV, male gender, genetic susceptibility, and secondhand smoke exposure. In August 2020, an additional addendum medical opinion was obtained. At that time, the examiner opined that it was more likely than not that the Veteran had HPV. In this regard, the examiner noted that such finding was based on a review of the medical literature, and cited to VA Medical Center oncology treatment notes from February 2010 in which it was noted that based on the Veteran’s clinical pathology findings, it was his opinion that the Veteran’s squamous cell carcinoma of the tongue was likely HPV positive. Further, the examiner again cited to the medical literature which showed that HPV infection accounted for approximately 70 to 80 percent of oropharyngeal carcinoma cases in North America. The examiner reiterated that in light of the Veteran’s treating oncologist’s opinion that the Veteran was likely HPV positive, it was more likely than not that the Veteran had an HPV infection that played a likely causative role in the Veteran’s development of oropharyngeal cancer. The August 2020 examiner also addressed the arguments put forth by the appellant’s representative that the male gender and secondhand smoke exposure were not risk factors for the development of squamous cell carcinoma of the tongue. In this regard, the examiner noted studies that showed that head and neck cancers, which included tongue cancer, had been shown to more frequently occur in men, and cited to medical studies showing that males were affected significantly more than females with a ratio ranging from 2:1 to 4:1. Further, the examiner cited to studies which found a significantly higher rate of secondhand smoke exposure in head and neck cancer patients than in control patients with an odds ratio of 5.34. The Board finds that the September 2019, April 2020, and August 2020 VA medical opinions are adequate, especially when read in conjunction with one another. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the appellant, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there are no medical opinions of record to the contrary. As such, the VA medical opinions are the most probative evidence of record. The Board recognizes the appellant’s sincere belief that the Veteran’s squamous cell carcinoma of the tongue was due to his exposure to herbicides while in active service; however, the appellant is not competent to determine that the Veteran’s squamous cell carcinoma was related to such exposure. That issue is medically complex, and requires knowledge of intricate medical matters, including knowledge of medical literature. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the appellant is not competent to provide an etiology opinion in this case. The Board also noted that the appellant submitted Board decisions for other Veterans in which service connection for tongue cancer related to herbicide exposure was granted in support of her claim. However, Board decisions are fact specific and not precedential. Therefore, a prior Board decision itself cannot be used to support a claim for service connection. In this case, absent any medical documentation showing a medical nexus between the Veteran’s squamous cell carcinoma of the tongue and his active service, the evidence in this case weighs against the claim of entitlement to service connection for squamous cell carcinoma of the tongue. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for squamous cell carcinoma of the tongue is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Cause of the Veteran’s Death The appellant is seeking service connection for the cause of the Veteran’s death. Specifically, she contends that the Veteran’s squamous cell carcinoma of the tongue was caused by his exposure to herbicides while serving in the Republic of Vietnam. A review of the record shows that the Veteran died in December 2010. The Veteran’s cause of death was listed on the death certificate as cancer. At the time of his death, the Veteran was not service-connected for any disability, let alone the squamous cell carcinoma of the tongue that caused his death. Further, as discussed in detail above, the Board has continued the denial of entitlement to service connection for squamous cell carcinoma of the Veteran’s tongue. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.