Citation Nr: 21065274 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-33 678 DATE: October 25, 2021 ORDER Service connection for squamous cell carcinoma oral, tongue (tongue cancer) is denied. FINDING OF FACT The Veteran's tongue cancer is not etiologically related to service, to include being caused or aggravated by in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for tongue caner are not met. 38 U.S.C. §§ 1110, 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1967 to December 1969, including service in Vietnam for which he received the Combat Infantryman Badge, among other decorations. The Veteran died in August 2017 and the Appellant is his surviving spouse. The Appellant was substituted in November 2018. In March 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). In July 2021, the Board remanded the issue to obtain a VA addendum medical opinion on whether it is at least as likely as not that the Veteran's tongue cancer is related to active service, to include being caused or aggravated by in-service herbicide exposure. In August 2021 the Veteran was provided with a VA addendum medical opinion, which addressed the July 2021 Board remand directives. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for tongue cancer. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Board notes that although tongue cancer is not among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, service connection may still be granted on a direct basis as the result of the Veteran's in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38U.S.C. §5103(A)(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that a preponderance of the evidence is an against a finding that the Veteran's tongue cancer is etiologically related to service, to include being caused or aggravated by in-service herbicide exposure. Service treatment records (STRs) indicate the Veteran had a normal clinical evaluation for his mouth and throat on his August 1967 enlistment examination and his October 1969 separation examination. STRs also do not contain complaints, treatment, or diagnosis for any mouth condition. In July 2010, private treatment records indicate that the Veteran reported he began to notice an irritation of the right side of his tongue. In September 2010, the Veteran was diagnosed with squamous cell carcinoma. In February 2012, the Veteran had a VA examination where the Veteran reported being cancer free. He reported no current pain or problems with his oral cavity. The examiner, a dentist, reported no signs of infection or recurrence of cancer or any deliberations. In August 2015, private treatment records indicate that the Veteran's squamous cell carcinoma reoccurred. In December 2015 and January 2016, two private medical opinions regarding the Veteran's tongue cancer indicated that the doctors could not rule out the possibility that the Veteran's prior exposure to Agent Orange increased his risk to developing tongue cancer. Additionally, another private medical opinion in January 2016 stated that the Veteran met the same criteria as other Veterans who were granted service connection for squamous cell carcinoma oral, tongue based on exposure to Agent Orange. Lastly, an additional private medical opinion from January 2016, issued by a doctor who had seen the Veteran as a patient since 2004, indicated that exposure to Agent Orange, at a minimum, may have been an additional co-factor in his tongue cancer development. In August 2016, the Veteran had a VA examination for his squamous cell carcinoma oral, tongue. The examiner opined that it is more likely than not that the oral cancer was a result of tobacco use and less likely than not from Agent Orange exposure. Additionally the August 2016 VA examiner stated that literature does not have sufficient evidence to determine if there is an association between Agent Orange exposure and cancers that affect the oral cavity, pharynx, and nasopharynx. The examiner noted that the Veteran had a history of tobacco use. The Board notes that the issue of service connection for tongue cancer was remanded in a July 2021 Board decision to obtain an addendum VA medical opinion. As discussed in the July 2021 Board remand decision, the Board noted that the four private medical opinions, from December 2015 and January 2016, were inadequate because they were too speculative to adequately support a decision on this claim. Further, the July 2021 Board decision also determined that the August 2016 VA examination did not specifically opine on whether the Veteran's tongue cancer was due to the Veteran's presumed exposure to herbicides in Vietnam. Hence, the July 2021 Board remand decision ordered an addendum medical opinion which was provided in August 2021. The remand directives asked the examiner to provide a medical opinion on whether it is at least as likely as not that the Veteran's tongue cancer is related to incident, injury, or event in active service, to include being caused or aggravated by in-service herbicide exposure. Additionally, the examiner was asked to include consideration and discussion of the December 2015 and three January 2016 private medical opinions regarding the Veteran's tongue cancer and exposure to Agent Orange. In August 2021, a VA medical addendum opinion was provided. The VA examiner indicated that the Veteran's tongue cancer was less likely than not related to the Veteran's service. The VA examiner stated they reviewed the Veteran's claim file, including the December 2015 and January 2016 private medical opinions as well as the July 2021 Board remand decision. The VA examiner also cited to relevant literature from the Mouth Cancer Foundation which reported that approximately 90 percent of people with oral cancer are tobacco users, and smokers are six times more likely than non-smokers to develop tongue cancer. The VA examiner noted that the Veteran's smoking history is an overwhelming risk factor that cannot be ignored in stratifying the Veteran's risk of tongue cancer. Additionally, the VA examiner indicated that the presumptive and speculative opinions rendered in 2015 and 2016 are not based on any objective evidence and assume the Veteran had tongue cancer due to the exposure in the service. The VA examiner reported that there is no evidence that the herbicide exposure caused the Veteran's tongue cancer rather than his smoking history. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Board has considered the August 2021 VA addendum medical opinion and affords the examiner's opinion great probative value. The examiner's opinion was based upon accurate facts and sound reasoning and is consistent with the contemporaneous evidence. Additionally, the August 2021 VA examiner correctly addressed the July 2021 Board remand directives, regarding whether the Veteran's tongue cancer is at least as likely as not related to service, to include being caused or aggravated by in-service herbicide exposure. Further the VA examiner commented and discussed the December 2015 and January 2016 private medical opinions regarding the Veteran's tongue cancer and exposure to Agent Orange. The examiner also indicated they reviewed the Veteran's claim file and discussed risk factors for tongue cancer, including prolonged tobacco use. As such, the August 2021 VA examiner's opinion is given probative value. To the extent to which the December 2015 and January 2016 private opinions suggested a link to service they indicated they could not rule out the possibility that Agent Orange increased the risk to developing cancer. The other two opinions in January 2016 also noted the condition was a "co-factor" and one opinion just suggested that it was similar to other cases where benefits were granted. The United States Court of Appeals for Veterans Claims (Court) has held that saying a condition "could" or "may" be related to something else is tantamount to saying it just as well "could not" or "may not" be related, so, because of this equivocality, an insufficient basis to establish causation. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran "may" have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could", or in the moving party's case, "may" or "possibly", without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). To the extent to which the January 2016 physician referred to other Board decisions, Board decisions are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. "Each case presented to the Board will be decided on the basis of the individual facts of the case." Id. Therefore, the Board finds that findings of a previous Board decision are inapplicable to the present case. Rather than referring to a favorable decision issued by the Board in another veteran's claim, the physician must explain the rationale for the opinion provided, citing to supporting clinical data and/or medical literature and explaining how such findings apply and impact this particular veteran's case. As that was not done here, the 2016 opinion is not probative. The Board notes that in July 2016, the Veteran asserted that his tongue cancer is mostly due to his exposure to chemical exposure while serving in Vietnam. See July 2016 Form 9. Further, in a March 2021 Board hearing before the undersigned VLJ, the Appellant contended that doctors throughout the Veteran's course of treatment for his tongue cancer had stated that the cancer was partly from Agent Orange. The Board also finds that although the Veteran can describe observable symptoms, such as tongue pain, his statements cannot be used to determine whether his tongue cancer is related service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran had the medical education and training required to make competent clinical diagnosis, or to attribute such a diagnosis to specific events or injuries. The Veteran's statements are outweighed by more contemporaneous lay and medical evidence of record, which includes the probative August 2021 VA addendum medical opinion. As such, the Board finds little probative value in the Veteran's statements with regard to establishing service connection. (Continued on the next page) The Board is grateful for the Veteran's service and is sympathetic to the Appellant's beliefs regarding the etiology of Veteran's tongue cancer; however, the preponderance of the competent evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. Therefore, service connection for the Veteran's tongue cancer is not warranted. 38 U.S.C. § 5107(b). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.