Citation Nr: 21061867 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-22 393 DATE: October 5, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) based upon service connection for cause of death is granted. FINDINGS OF FACT 1. Exposure to herbicides is presumed based upon the Veteran's service in the Republic of Vietnam. 2. Resolving all reasonable doubt in favor of the appellant, the Board finds that the Veteran's cause of death, specifically his head and neck cancer, was causally related to his herbicide exposure during service. CONCLUSION OF LAW The criteria for entitlement to DIC based upon service connection for cause of death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1968 to May 1969, July 1973 to November 1980, and August 1986 to September 1992. The Veteran passed away in November 2015. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. Entitlement to DIC based upon service connection for cause of death. Under 38 U.S.C. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310(a). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a) (6) (iii), 3.313(a). The phrase the Republic of Vietnam now includes the 12 nautical mile territorial sea of Vietnam. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to the presumption of exposure. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy, which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Respiratory cancers, to include cancer of the lung, bronchus, larynx, or trachea, are listed in the enumerated diseases. In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). An October 2015 private medical record noted that the Veteran's head and neck cancer may be in part due to his Agent Orange Exposure. Respiratory cancers including lung, larynx, trachea, and bronchus are noted as a VA disability. Another October 2015 statement from his treating physician noted that the Veteran was originally diagnosed with a base of tongue cancer in 2006 and underwent chemotherapy and radiation therapy. In 2015, he had a recurrence in the retromolar trigone. Clinic notes described his initial diagnosis was an advanced base of tongue lesion. This potentially could have originated in the laryngeal region with extension to the base of tongue. Further noting that respiratory cancers can be attributed to Agent Orange exposure and do list the larynx as part of the respiratory tract. The upper respiratory tract includes from the nasal cavity through the larynx and the lower respiratory tract starts below the larynx. The VA definition includes structures in the upper respiratory tract and the Veteran should be strongly considered for inclusion of a disease related to Agent Orange. The appellant submitted an additional medical opinion dated December 2016. The examiner reviewed the Veteran's medical records. The examiner noted that he has a biopsy proven cancer in the base of the tongue and regional lymph nodes. The AJCC Cancer staging manual, seventh edition, defines the larynx as anatomic regions immediately adjacent to the base of tongue. His tumor was immediately adjacent to the boundaries defined as larynx and it should be strongly considered that his disease can be possibly or likely related to his Agent Orange exposure. The examiner noted that Agent Orange increases cancer risk from the larynx to the lung and these regions are considered as an Agent Orange disability. A distance of millimeters in the aero-digestive tract should not disqualify him from a disability claim in a disease that was likely caused by his carcinogen exposure. Documents from a decade ago show that this cancer was immediately adjacent to the larynx and the examiner noted that he had seen multiple cases where that subsite is involved as well. In March 2018, the examiner provided another medical opinion regarding the Veteran's cancer. The examiner reviewed all available documents in the case. The Veteran had a neck mass, which was biopsy positive for squamous cell carcinoma in July 2006. This came from a mass or conglomerate of lymph nodes measuring 10 cm. This is important as it likely involved all levels II-IV of the left neck. Original level of neck nodes involved cannot be ascertained. Documentation shows that he had an endoscopic biopsy from the base of the tongue in September 2006, which was negative for carcinoma. Multiple notes separately referred to the Veteran's diagnosis as TxN3, probable base of tongue primary with negative biopsy, and an unknown primary. The examiner noted that the Veteran had a negative base of tongue biopsy. He was considered by multiple physicians in 2006 as either an "unknown primary" or "Tx" base of tongue squamous cell carcinoma. Unfortunately, without a biopsy from the base of tongue showing this is where the primary lesion was, it is a presumptive diagnosis. He may have had a false positive from the base of tongue as stated as an "unknown primary" by his admitting Medical Oncologist. It is reasonable to associate his Agent Orange exposure to his "unknown primary" head and neck cancer. The Board notes that whether the presumption of service connection applies due to exposure to herbicides, service connection may be granted on a direct basis if the evidence indicates that the Veteran's disability was causally related to exposure. The private examiner provided opinions in December 2016 and March 2018 that opined that the Veteran's disability was likely caused by his carcinogen exposure. The Board acknowledges that the record contains a negative nexus opinion by a VA examiner dated September 2017. However, given the positive nexus opinions provided by his private medical provider, the Board finds that the evidence is at a minimum in equipoise regarding entitlement to service connection for cause of death, specifically head and neck cancer. As any reasonable doubt in the evidence must be resolved in favor of the appellant, entitlement to service connection for cause of death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.