Citation Nr: A21016516 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 200616-93793 DATE: October 8, 2021 ORDER Service connection for residuals of a carcinoma in situ at the right base of the tongue is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran's carcinoma in situ at the right base of the tongue was etiologically related to in-service herbicide exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for residuals of a carcinoma in situ at the right base of the tongue have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1965 to August 1975, including service in the Vietnam War. A rating decision was issued under the legacy system in October 2016 and the Veteran submitted a timely notice of disagreement. In January 2020, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC). Later in January 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the January 2020 SOC. In June 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the January 2020 SOC. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the January 2020 SOC, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a)(2021). Within the AMA framework, the AOJ will readjudicate a previously denied claim if new and relevant evidence is presented or secured. 38 C.F.R. § 19.2(d)(2021). The Veteran's claim for service connection for tongue cancer was denied in a December 2011 rating decision. The Veteran submitted an NOD in January 2012 and the AOJ issued an SOC in February 2015. The Veteran submitted a substantive appeal (VA Form 9) in March 2016 and, in April 2016, the AOJ informed the Veteran that this appeal was untimely. The issue on appeal stems from a subsequent claim for service connection for tongue cancer the Veteran submitted in April 2016. The AOJ did not acknowledge this prior denial in its June 2020 HLR rating decision. Although the AOJ did not explicitly state that new and relevant evidence had been presented or secured to warrant readjudication of the claim, because the AOJ proceeded to readjudicate the merits of the claim, the AOJ implicitly found that readjudication was warranted. Under the AMA, the Board is bound by favorable findings made by the AOJ. 38 C.F.R. § 3.104(c)(2021). The Board will therefore proceed to the merits of the Veteran's claim. 1. Residuals of a Carcinoma in Situ at the Right Base of the Tongue The Veteran contends that he has residuals of tongue cancer that was caused by herbicide exposure during his military service. In its June 2020 HLR decision, the AOJ found that the Veteran served in the Republic of Vietnam during the Vietnam War and that he had a current diagnosis of residuals of a carcinoma in situ at the right base of the tongue. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). As stated above, the Board is bound by favorable findings made by the AOJ. 38 C.F.R. § 3.104. The remaining question before the Board is therefore whether the Veteran's cancer of the tongue was caused by his presumed exposure to herbicides. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases does not include cancer of the tongue. 38 U.S.C. § 1116(a)(2)(2021). However, a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that an appellant does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. The Veteran has submitted a June 2011 medical opinion by a private oncologist, who opined that the Veteran's head and neck cancer "while impossible to prove may be related" to herbicide exposure. This does not rise to the level of an opinion that a nexus is at least as likely as not. The oncologist's rationale was that these cancers are "most commonly associated with smoking and alcohol consumption," that the Veteran "did not have either of these risk factors," and that herbicide exposure "has been linked with other cancers." The Veteran was afforded a VA examination in December 2011. The clinician opined that the Veteran's tongue cancer was at least as likely as not incurred in or caused by in-service herbicide exposure and provided a similar rationale to that provided by the private oncologist in June 2011. The Veteran has also submitted a March 2016 medical opinion by another private oncologist, who opined that the Veteran's tongue cancer was at least as likely as not a result of herbicide exposure in Vietnam. The oncologist's rationale again cited the absence of alcohol and tobacco as risk factors, but added a detailed discussion of the mechanisms by which the chemicals contained in the herbicides to which the Veteran was presumptively exposed cause cancer and found that the same mechanisms would cause the Veteran's tongue cancer. The record contains three medical opinions, two of which are by oncologists and all of which are favorable to the Veteran's claim. The record contains no medical opinion to the contrary. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's carcinoma in situ at the right base of the tongue was due to in-service herbicide exposure. Accordingly, the Board finds that granting service connection for residuals of a carcinoma in situ at the right base of the tongue is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.