Citation Nr: 21075788 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-09 839 DATE: December 21, 2021 ORDER Entitlement to service connection for cancer and/or residuals of cancer of the head and neck, to include as due to exposure to herbicide agents, is granted. FINDINGS OF FACT 1. The Veteran had in-country service in the Republic of Vietnam during the Vietnam Era. 2. The evidence is in equipoise as to whether the Veteran's cancer and/or residuals of cancer of the head and neck is (are) related to his service, to include as due to exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for cancer and/or residuals of cancer of the head and neck, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to December 1971. In August 2021, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for basaloid squamous cell carcinoma of the head and neck, more broadly as a claim of entitlement to service connection for cancer and/or residuals of cancer of the head and neck, to include as due to exposure to herbicide agents. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307, 3.309. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C. § 1116 (b) (1); see 61 Fed. Reg. 41,368-41,371. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). If a veteran was exposed to an herbicide agent during active service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). At the onset, the Board notes that the Veteran's military personnel records reflect that he served in the Republic of Vietnam during the Vietnam Era. Thus, in the instant case, the Board concedes that the Veteran made visitations to the Republic of Vietnam as his service has been verified, and he was so called "boots on ground," within the region. Therefore, exposure to herbicide agents has been conceded. Furthermore, the medical evidence reflects that the Veteran has been diagnosed with squamous cell carcinoma and has residuals associated with cancer, to include dry mouth, change in taste, dysphagia, and weight loss. See November 2015 VA examination report. The Board acknowledges that respiratory cancers, which include cancers of the lung, bronchus, larynx, or trachea, would qualify as a presumptive disease associated with herbicide exposure. However, the Board notes that the evidence of record does not support a finding that the Veteran's squamous cell carcinoma is a cancer of the lung, bronchus, larynx, or trachea. In a March 2015 private medical record, Dr. M.F. noted that the Veteran underwent radiation therapy for his carcinoma of unknown primary in the head and neck region. The Board acknowledges that Dr. M.F. also stated that it is very likely a cancer of oropharynx, larynx, or pharynx. However, no rationale as to the basis of this finding was provided. A single conclusory sentence, without a rationale as to the basis of that opinion, lacks probative value. As any opinion, to be adequate, it "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Conversely, in a November 2015 VA examination report, the VA examiner noted that based on objective tests, to include PET/CT, surgical/ENT procedure notes, and surgical pathology and clinic notes, the Veteran's cancer did not involve the lung, larynx, trachea, or bronchus. As such, the Veteran's cancer is being classified as head and neck cancer of unknown primary. Thus, because the VA examiner's opinion is based on objective testing, the Board finds that the VA examiner's opinion is more probative that the Veteran's cancer did not involve lung, larynx, trachea, or bronchus. Given such, presumptive service connection for exposure to herbicide agents for respiratory cancers is not warranted. See 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). Thus, in order to be awarded service connection for this disability due to exposure to herbicide agents, the evidence must show that the Veteran's disability is directly related to his exposure to herbicide agents. The Board finds that the medical evidence of record is in equipoise as to whether the Veteran's cancer and/or residuals of cancer of the head and neck are related to his conceded exposure to herbicide agents. Here, in an April 2015 private medical opinion, Dr. J.S.T. noted that the Veteran has undergone surgical excision and radiation therapy for a rare and unique form of cancer, adenoid cystic carcinoma. Dr. J.S.T. stated that "[i]t's course is known to be unpredictable and relentless. The underlying cause is not known, but it is not associated with smoking and alcohol. The current hypothesis is that the cancer is the result of environmental factors that cause normal cells to acquire genetic changes, leading to uncontrolled growth." Given such, Dr. J.S.T. opined there is a reasonable concern that the Veteran's previous exposure to "Agent Orange" may have played a role in the development of his very rare cancer. See April 2015 medical records from Mid South Ear Nose & Throat PC. Similarly, in another April 2015 private medical opinion, Dr. A.P. opined that the Veteran's head and neck squamous cell carcinoma could have been caused by exposure from "Agent Orange." See April 2015 medical records from The West Clinic. The Board notes that while the November 2015 VA examiner noted that the Veteran does not have a respiratory cancer, the VA examiner did not provide an opinion as to whether the Veteran's cancer and/or residuals of cancer are related to his conceded herbicide exposure. Based on the foregoing, the Board finds that the April 2015 private medical opinion from Dr. J.S.T., in conjunction with the April 2015 private medical opinion from Dr. A.P., which link the Veteran's head and neck squamous cell carcinoma to his conceded in-service exposure to herbicide agents, support a finding that the Veteran's head and neck squamous cell carcinoma and or residuals thereof is at least as likely as not related to the Veteran's service. Specifically, Dr. J.S.T. explained that the Veteran's exposure to herbicide agents could cause normal cells to acquire genetic changes, leading to uncontrolled growth, resulting in the Veteran's rare form of cancer. Thus, the third element of service connection is satisfied. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for cancer and/or residuals of cancer of the head and neck, to include as due to exposure to herbicide agents, is warranted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.