Citation Nr: 21070771 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-05 933 DATE: November 26, 2021 ORDER Entitlement to service connection for an oral cancer disorder, to include as secondary to toxic herbicide exposure, is denied. FINDING OF FACT Despite the Veteran's presumptive herbicide exposure due to his service in the Republic of Vietnam, the preponderance of the evidence shows that his oral cancer was not present during active duty or until many years thereafter, and is not related to service. CONCLUSION OF LAW The criteria for service connection for oral cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1970. In March 2020, the Veteran testified before the undersigned Veterans Law Judge via videoconference at the RO, and a transcript of the hearing is of record. A May 2020 Board decision was vacated by the US Court of Appeals for Veterans Claims in January 2021. This claim was remanded in June 2021. The Board finds that this remand was substantially complied with and is now ready for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for oral cancer Here, the Veteran asserts that his oral cancer, which is specifically diagnosed as left tonsil cancer, is related to his active duty service, and specifically to his exposure to toxic herbicides. As an initial matter, the Board concedes toxic herbicide exposure, as the Veteran's personnel records reflect that the served in the Republic of Vietnam. However, service connection is not warranted on a presumptive basis, as he does not have a type of cancer that is associated with agent orange. Therefore, service connection is not warranted on this basis. However, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). In this instance service connection cannot be granted on a direct basis either. The Veteran's service treatment records do not report any injuries or complaints of symptoms related to the tonsils during service. Specifically, his November 1970 separation examination and report of medical history do not report any injury, diagnosis, or complaints related to the Veteran's oral health. Next, the first indication of an oral disorder was not until he was diagnosed with cancer in 2011. As part of this claim, the Board recognizes the possible statements from the Veteran regarding his history of oral symptoms. However, the Veteran does not assert that his oral cancer and related symptoms were continuous since service. Therefore, continuity of symptomatology has not been established. Next, service connection may also be granted when the evidence establishes a medical nexus between active-duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically, in a September 2021 VA examination, the examiner conducted a thorough physical examination of the Veteran and his service and medical records, and took a detailed medical history from the Veteran. The examiner opined that it was less likely than not that Veteran's oral cancer was related to service, or to any in-service exposure to toxic herbicide exposure. In support, the examiner noted that oral cancer has not been shown to be related to toxic herbicide exposure based upon recent studies. Moreover, he noted that oral cancer is likely related to smoking, which the Veteran acknowledged a history of such. The Board notes that there are some treatment records that suggest a relationship between the Veteran's oral cancer and his toxic herbicide exposure. However, the Board places less probative value on this evidence as it appears these records merely document the Veteran's asserted etiology, and the credibility of such assertions is low. Further, there is no indication that the medical providers reviewed any of the Veteran's service treatment records, nor did they provide a rational for their opinion or provide a written opinion of record. The Board also acknowledges the statements from the Veteran regarding the etiology of his tonsil cancer, which he asserts was caused by toxic herbicide exposure. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his cancer may be the result of service, he is a lay person without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of his disorder. The Board concludes that the preponderance of the evidence is against the claim for service connection for oral cancer, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel