Citation Nr: 21071285 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-20 793 DATE: November 30, 2021 ORDER Entitlement to service connection for squamous cell carcinoma of the left tonsil is granted. FINDING OF FACT The Veteran's squamous cell carcinoma of the left tonsil is related to exposure to herbicide agents while serving in Vietnam. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma of the left tonsil are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6)(iii). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1963 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in October 2021. A transcript of the hearing is associated with the claims file. The Veteran and a witness testified at the hearing. Entitlement to service connection for squamous cell carcinoma of the left tonsil The Veteran contends that his squamous cell carcinoma of the left tonsil is related to his exposure to herbicide agents while serving in Vietnam. 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). Certain chronic diseases, such as malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran's DD Form 214 reflects that he had service in the Republic of Vietnam, thus it is presumed that he was exposed to Agent Orange during active service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Squamous cell carcinoma is not among the diseases associated with exposure to herbicides agents. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for melanoma and non-melanoma skin cancer (basal cell and squamous cell). See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010); National Academies of Science, Engineering, Medicine, Veterans and Agent Orange: Update 2014, at 907-08 (listing "[n]on-melanoma skin cancer (basal-cell and squamous-cell)" as part of the "Inadequate or Insufficient Evidence to Determine an Association" category, available at https://www.nap.edu/read/21845/chapter/16#907. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). Private oncology treatment notes from July 2015 reflect the Veteran was diagnosed with squamous cell carcinoma after first noticing a mass in his neck in April 2015. He underwent a left tonsillectomy in June 2015. He was then referred for chemotherapy. A private disability benefits questionnaire from August 2015 reflects the Veteran was receiving chemotherapy and radiation at that time. The Veteran filed his claim for service connection for "squamous cell carcinoma throat above larynx" in August 2015. As the Veteran served in the Republic of Vietnam and is presumed exposed to herbicide agents, he question becomes whether the current disability is related to service. There are opinions in favor of the claim. A disability benefits questionnaire supplied by a private physician in August 2015 indicates that he was familiar with the Veteran's history, both military and medical, and he believed the Veteran's cancer was more than likely due to Agent Orange exposure while in Vietnam as a Marine. In January 2016, the same private physician, who specializes in radiation oncology, provided a letter expanding upon his opinion. He explained that he was familiar with the Veteran's medical and military histories, and presumed exposure to certain chemicals that are contained in Agent Orange and herbicides. He explained that he believed it was more likely than not that the exposure to chemical agents in Vietnam was directly related to the Veteran having squamous cell cancer in his left tonsil, which required removal of the tonsil, and subsequent radiation and chemotherapy. He explained he had reviewed much of the literature on dioxin, TCDD, and its effect on the body that causes cells to become cancerous. He determined that most likely the pathways that cause cells to become cancerous from TCDD are the same whether the exposure occurs in the membranes of a tonsil or those of a lung. He noted the literature was replete with findings of animal and human studies that showed that mechanisms by which cancer is acquired through TCDD exposure is not particularly selective. The examiner provided a sample of the type of study he referenced. He went on to explain that in the case of the Veteran, the cancer was found in his left tonsil, and was most likely caused by the exposure VA says causes so many other cancers. This is the pathway in which the dioxin containing Agent Orange would take to cause those cancers the VA presumes are caused by the chemicals. He went on to conclude that it then logically follows that exposure of the same type of membranes to the same chemicals earlier in the airway would produce the same effect at the site where there was either weakness or greatest exposure. In the case of the Veteran, it was his tonsil. Significant weight is afforded to the private physician's opinions considering his expertise and the rationale provided in the January 2016 letter. Notably there is no other opinion addressing the etiology of the disability. Affording the Veteran the benefit of the doubt, the Board finds that his squamous cell carcinoma of the left tonsil, which is currently in remission, is at least as likely as not related to his service. Accordingly, the Board finds that service connection for squamous cell carcinoma of the left tonsil is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.