Citation Nr: 21071706 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-51 510 DATE: December 1, 2021 ORDER Entitlement to service connection for squamous cell carcinoma of the tongue is granted. Entitlement to service connection for left upper extremity peripheral neuropathy is granted. Entitlement to service connection for right upper extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for xerostomia (dry mouth) is granted. Entitlement to service connection for dysgeusia (taste dysfunction) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his squamous cell carcinoma of the tongue is at least as likely as not related to service, to include asbestos exposure. 2. Resolving reasonable doubt in the Veteran's favor, his left upper extremity peripheral neuropathy is secondary to treatment required for his squamous cell carcinoma of the tongue. 3. Resolving reasonable doubt in the Veteran's favor, his right upper extremity peripheral neuropathy is secondary to treatment required for his squamous cell carcinoma of the tongue. 4. Resolving reasonable doubt in the Veteran's favor, his left lower extremity peripheral neuropathy is secondary to treatment required for his squamous cell carcinoma of the tongue. 5. Resolving reasonable doubt in the Veteran's favor, his right lower extremity peripheral neuropathy is secondary to treatment required for his squamous cell carcinoma of the tongue. 6. Resolving reasonable doubt in the Veteran's favor, his hypothyroidism is secondary to treatment required for his squamous cell carcinoma of the tongue. 7. Resolving reasonable doubt in the Veteran's favor, his xerostomia is secondary to treatment required for his squamous cell carcinoma of the tongue. 8. Resolving reasonable doubt in the Veteran's favor, his dysgeusia is secondary to treatment required for his squamous cell carcinoma of the tongue. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma of the tongue are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for right upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for hypothyroidism are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for service connection for xerostomia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for service connection for dysgeusia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to July 1990. He is the recipient of numerous awards and decorations, to include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which reopened and confirmed and continued the denial of the claim for service connection for squamous cell carcinoma of the tongue with lymph node involvement and bilateral upper and lower extremity peripheral neuropathy. In April 2021, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. He waived RO consideration of any additional evidence added to his file. The record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. In May 2021, VA received additional evidence consisting of a medical advisory opinion from a private oncology consultant and a Physical Exam report, both dated in April 2021. An October 2008 rating decision denied entitlement to service connection for squamous cell carcinoma of the tongue with lymph node involvement. The Veteran did not appeal this decision. Accordingly, the October 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. In an August 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, the Veteran sought to reopen this claim (and claimed secondary service connection for upper and lower extremity peripheral neuropathy due to chemotherapy for squamous cell soft tissue carcinoma.) In this regard, generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, in January 2020, the Blue Water Navy Vietnam Veterans Act of 2019 became effective. The Act was in response to the Court of Appeals for Veterans' Claims (Court) decision which concerns "Blue Water" Navy Veterans who served during the Vietnam Era. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en bane). The Court held that veterans who "served in the 12 nautical mile territorial sea of the 'Republic of Vietnam' "are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. This decision has since been codified into the Act. See 38 U.S.C. § 1116A. As the Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran's previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Therefore, the claim for service connection for squamous cell carcinoma of the tongue with lymph node involvement may be reviewed on a de novo basis. The April 2021 medical advisory opinion from the private oncology consultant notes that the chemotherapy and radiation treatment for the Veteran's squamous cell carcinoma of the tongue has caused hypothyroidism, xerostomia and dysgeusia. Accordingly, the claims of entitlement to service connection for squamous cell carcinoma of the tongue and bilateral upper and lower extremity peripheral neuropathy as secondary to squamous cell carcinoma of the tongue has been expanded to include the claims of service connection for hypothyroidism, xerostomia and dysgeusia under the secondary service connection theory of entitlement and has been characterized as stated on the title page. See Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) ("VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations."); see also, Bailey v. Wilkie, 33 Vet. App. 188 (2021), ("VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.") As this decision results in a full grant of benefits with respect to the additional disabilities, there is no prejudice to the Veteran in including these disabilities in this decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 8 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To establish a right to compensation for a present disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases, including 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). 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. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Effective January 1, 2020, the Blue Water Navy Act implemented this holding, and service in the Republic of Vietnam is now defined as service on the landmass, inland waterways, or territorial sea extending twelve nautical miles from the shores of Vietnam as provided in 38 U.S.C. § 1116A. If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). These diseases must have become manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Squamous cell carcinoma The evidence shows that the Veteran has a current disability. Specifically, VA and private post-service treatment records shows that he was found to have cancer in November 2006, when he was diagnosed with squamous cell carcinoma of the left base of the tongue, and he has subsequently been in receipt of treatment for his cancer. Thus, the Board finds that the first element of service connection is established. See Holton, supra. The Veteran does not assert, nor does the evidence show, that his cancer was present in service or within one year of discharge. The service treatment records are negative for any indication of cancer. A review of the post-service treatment records shows that the Veteran was initially diagnosed with squamous cell carcinoma of the left base of the tongue November 2006, approximately 16 years after separation from service. Thus, service connection may not be established on the basis that he had cancer in service or on a presumptive basis for a malignant tumor that manifests to a compensable degree within a year of separation. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). VA has confirmed that the Veteran served offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23 (codified at 38 U.S.C. § 1116A), during the Vietnam Era. Specifically, a December 2007 response from the service department verified that the Veteran served aboard the USS Leonard F. Mason which was in the official waters of the Republic of Vietnam from November 26, 1971 to December 31, 1971; January 10, 1972 to February 3, 1972; February 10, 1972 to February 16, 1972; March 1, 1972 to March 4, 1972; and December 21, 1972 to January 18, 1972. Therefore, he is presumed to have been exposed to herbicides during such service and the second element of service connection, inservice injury, is established. See Holton, supra. Further, the Veteran's personnel records reflect that the Veteran served as a Quartermaster and Submarine Repairman, the latter for 50 months, in service. VA has acknowledged that work with ships can result in asbestos exposure. https://www.publichealth.va.gov/exposures/asbestos/index.asp Affording the Veteran the benefit of any doubt, the Board finds the Veteran was exposed to asbestos in service. Squamous cell carcinoma of the tongue is not one of the diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on exposure to an herbicide agent. Respiratory cancers of the lung, bronchus, larynx, or trachea are listed; however, the Veteran's cancer was in the tongue, which is anatomically a different location than the lung, bronchus, larynx, or trachea. Notably, although a March 2019 letter from medical personnel at the VA Eastern Kansas Health Care System, in connection with his participation in the VA Agent Orange Health Registry, notified the Veteran that his squamous cell carcinoma on the base of the tongue and lymph node "is presumptively associated with Agent Orange exposure," this information is in conflict with 38 C.F.R. § 3.309(e) and was provided in error. The Board must follow the applicable law and regulations when deciding a claim for VA benefits and is not bound by erroneous advice dispensed by a VA employee. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Accordingly, service connection for squamous cell carcinoma of the tongue on a presumptive basis as due to in-service herbicide exposure is not warranted. The appellant could, nonetheless, establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). An April 2021 private advisory medical opinion includes the conclusion that the examiner is "convinced to a high degrees of confidence based on the medical and scientific evidence reviewed, that [the Veteran's] diagnosis of squamous cell cancer of the base of the tongue (Oropharynx) is 'at least as likely as not' caused by his conceded exposure to Agent Orange as well as exposure to Asbestos." The private clinician acknowledged that VA had recognized respiratory cancers, but not of the oropharynx, as associated with herbicide exposure for presumptive service connection purposes. The opinion reflects detailed references to the Veteran's medical history, including other risk factors such as smoking and alcohol use. With respect to asbestos, the clinician noted that the Veteran served as a Quartermaster and Submarine Repairman in service; that "US Navy ships and submarines of that era are well-documented to have had Asbestos material in ubiquitous use throughout"; that "Asbestos is universally recognized as a human carcinogen with no safe exposure levels"; that "[m]ultiple epidemiologic studies spanning decades consistently show that Asbestos exposure is associated with squamous cell cancers of the oropharynx regardless of other factors"; and that "latency for squamous cell cancer of the tongue is 27 years on average and the latency for Asbestos-related cancers is up to 40 years which is "entirely consistent with [the Veteran's] own latency range of 26-36 years." While acknowledging the Veteran's risk factors of smoking and moderate alcohol use, the clinician noted "on the other hand, never chewed tobacco products, has no family history of any head & neck cancers and no known HPV infection." In light of the positive nexus opinion, and in the absence of probative evidence to the contrary, the Board finds that the preponderance of the competent evidence shows that the Veteran's squamous cell carcinoma of the tongue is related to his in-service asbestos exposure, and nexus is established. As all three elements of service connection have been met, service connection for squamous cell carcinoma of the tongue is warranted. 2-8. Peripheral Neuropathy, Left Upper Extremity; Peripheral Neuropathy, Right Upper Extremity; Peripheral Neuropathy, Left Lower Extremity; Peripheral Neuropathy, Right Lower Extremity; Hypothyroidism; Xerostomia; Dysgeusia The Veteran has also appealed the denial of service connection for bilateral upper and lower extremity peripheral neuropathy secondary to service-connected squamous cell carcinoma of the tongue. As discussed in the decision above, service connection is granted for squamous cell carcinoma of the tongue (associated with asbestos exposure.) The April 2021 private medical advisory opinion includes the conclusion that the Veteran "has suffered the expected long-term sequelae of chemotherapy including bilateral upper and lower extremity peripheral neuropathy and the expected sequelae of radiation therapy including hypothyroidism (requiring being on lifelong thyroid hormone replacement medication), xerostomia and dysgeusia." See also VA treatment records noting peripheral neuropathy secondary to chemotherapy and "[h]ypothyroidism after his surgeries, chemo and radiation." As the record shows that the Veteran has bilateral upper and lower extremity peripheral neuropathy, hypothyroidism, xerostomia (dry mouth) and dysgeusia (taste dysfunction) and that such disabilities are the result of treatment for his now service-connected squamous cell carcinoma of the tongue, all of the requirements for establishing secondary service connection are met; service connection for bilateral upper and lower extremity peripheral neuropathy, hypothyroidism, xerostomia and dysgeusia is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.