Citation Nr: 21077076 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-47 304 DATE: December 28, 2021 ORDER Entitlement to service connection for metastatic right tonsillar squamous cell carcinoma is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD)/hiatal hernia as secondary to metastatic right tonsillar squamous cell carcinoma is granted. Entitlement to service connection for trigeminale and hypoglossal cranial neuropathy as secondary to metastatic right tonsillar squamous cell carcinoma is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his metastatic right tonsillar squamous cell carcinoma was incurred due to exposure to contaminated water at Camp Lejeune. 2. The Veteran's GERD/hiatal hernia was caused by his metastatic right tonsillar squamous cell carcinoma. 3. The Veteran's trigeminale and hypoglossal cranial neuropathy was caused by his metastatic right tonsillar squamous cell carcinoma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for metastatic right tonsillar squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for GERD/hiatal hernia as secondary to metastatic right tonsillar squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for trigeminale and hypoglossal cranial neuropathy as secondary to metastatic right tonsillar squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to August 2004. The matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2016 and September 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). For the sake of efficiency and consistent with Board policy, the Board had merged these appeal streams into one. This does not prejudice the Veteran in any way. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. The hearing transcript is of record. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (codified at 38 C.F.R. § 3.307(a)(7)). Here, as the Veteran served at Camp Lejeune during the relevant period, exposure to contaminated water is presumed. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). While metastatic right tonsillar squamous cell carcinoma is not among these diseases, service connection can be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for metastatic right tonsillar squamous cell carcinoma The Board finds that the Veteran has metastatic right tonsillar squamous cell carcinoma that is related to in-service exposure to contaminated water at Camp Lejeune, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record in this case is clear as to whether the Veteran has metastatic right tonsillar squamous cell carcinoma. The post-service private medical treatment records reflect a diagnosis of metastatic right tonsillar squamous cell carcinoma. See also December 2015 VA examination. Thus, the first element of service connection, the existence of a current disability, is satisfied. Next, in addressing in-service incurrence, as indicated above, the Veteran's exposure to contaminated water at Camp Lejeune is conceded. See also January 2016 rating decision. Therefore, the second element of service connection is also established. The remaining question is whether there is a nexus between the Veteran's right tonsillar squamous cell carcinoma and service, to include his exposure to contaminated water at Camp Lejeune. The Board notes that because metastatic right tonsillar squamous cell carcinoma is not a disability that qualifies for presumptive service connection under 38 C.F.R. § 3.309(f), the preponderance of the evidence must demonstrate a nexus between the Veteran's metastatic right tonsillar squamous cell carcinoma and the contaminated water exposure. When the evidence of record, as here, contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's metastatic right tonsillar squamous cell carcinoma is due to in-service exposure to contaminated water at Camp Lejeune. The VA examiners' opinions of December 2015 and September 2018 are opposed to this conclusion, but the Board finds that the contrary private opinions of May 2014 and June 2018 by Dr. M.M. deserve at least equal probative value. In the favorable medical opinion of May 2014, Dr M.M. indicated that he was the Veteran's treating physician for many years. He noted the Veteran's diagnosis of squamous cell carcinoma of the right tonsil of 2010, which was extensively treated with radiation therapy, chemotherapy, and surgical removal of persistent lymph nodes in his neck. Dr. M.M. noted that the Veteran did not have any of the typical risk factors for such a diagnosis to include tobacco use or alcohol dependence. Moreover, TCE and PCE are linked with head and neck cancers in multiple medical investigations. Dr. M.M. also indicated that the Veteran developed chronic sequelae to include tongue and neck spasms due to his cancer treatment. The June 2018 private medical opinion by Dr. M.M. states that, according to medical literature, exposure to TCE and PCE is directly linked to esophageal cancer, and PCE exposure is a known risk factor for throat cancer. Prior to his throat cancer diagnosis, the Veteran was in excellent health and a longtime athlete. He has not used tobacco or engaged in heavy drinking or had chronic viral infections; he has no history of organ transplant, dietary factors, genetic predisposition, or poor oral hygiene. His only risk factor is exposure to elevated levels of PCE. Post-cancer treatment issues for the Veteran include hypoglossal nerve damage with swallowing problems, aspiration of food and liquid products, right-sided neck and jaw spasms, right trapezius spasms, head shakes and slurred speech. Based on this information, to include a review of the Veteran's medical service records and medical literature, Dr. M.M. opined that the Veteran's throat cancer and residuals are as likely as not due to exposure to contaminated water at Camp Lejeune. The private examiner's opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). By contrast, the VA medical opinions are incomplete, and therefore less probative. The December 2015 VA medical opinion is against service connection, citing the Veteran's common risk factors for head and neck cancers, namely, human papillomavirus (HPV) infection and alcohol use, as well as possible childhood secondhand smoke exposure. The examiner also states that there is no medical literature demonstrating that TCE/PCE exposures cause head or neck cancers. The examiner noted that the Veteran underwent multiple biopsies of his mouth for chronic benign inflammatory lesions of the floor of the mouth and side of tongue during service, and that the significance of this with regards to his squamous cell carcinoma of the right tonsil is not known. The Board finds that this opinion is incomplete, as it fails to take into account the favorable medical literature regarding contaminated water exposure and throat cancer, such as that cited by Dr. M.M., and declines to offer an opinion on the significance of in-service mouth lesions or explain the reason for doing so. A September 2018 VA medical opinion is also against service connection, stating that medical literature does not support the Veteran's claim but rather indicates that HPV, smoking, and drinking are the major causes of tonsillar cancer. As the Veteran reported that he does not smoke or drink, the likeliest cause is HPV. In an addendum, the examiner noted the in-service biopsies and concluded that there is no objective evidence of any link to service, as the biopsy records did not include lab results, and as the Veteran's cancer was found years after separation. The Board finds that these opinions are also incomplete, as they fail to take into account the favorable medical literature regarding contaminated water exposure and throat cancer, such as that cited by Dr. M.M., or adequately explain, in more than a conclusory fashion, why the Veteran's cancer is not related to his in-service lesions. The Board notes that the VA examiners' opinions are in part based on a VA treatment record, specifically, a speech pathology consult, dated November 2005 briefly indicating that the Veteran was positive for HPV. However, multiple private treatment records do not note the presence of HPV. See private medical treatment records received by VA in August 2018. In dental health questionnaires dated September 1988, May 1991, July 1992, October 1997 and July 2002, the Veteran responded that he did not have a history of venereal disease. See service treatment records (STRs) received by VA in July 2014. In multiple STRs, he also reported that he did not have any sexually transmitted diseases. Id. The VA opinions do not address these records, further limiting their probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, after considering all the evidence of record, to include that set forth above, the Board finds that the evidence is at least in relative equipoise, and the Veteran's metastatic right tonsillar squamous cell carcinoma is related to his exposure to contaminated water at Camp Lejeune. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for metastatic right tonsillar squamous cell carcinoma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for GERD/hiatal hernia as secondary to metastatic right tonsillar squamous cell carcinoma 3. Entitlement to service connection for trigeminal and hypoglossal cranial neuropathy as secondary to metastatic right tonsillar squamous cell carcinoma The Veteran contends that his GERD/hiatal hernia and trigeminal and hypoglossal cranial neuropathy are secondary to his metastatic right tonsillar squamous cell carcinoma. The record in this case is clear as to whether the Veteran has GERD/hiatal hernia and trigeminal and hypoglossal cranial neuropathy. The post-service medical treatment records reflect a diagnosis of these conditions. See also September 2018 VA examination (noting right-side trigeminal and hypoglossal neuropathy). Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the second element of the analysis, the Board has awarded service connection for throat cancer in the present decision. As the first and second elements of the service connection analysis are satisfied, the remaining question before the Board is whether there is a nexus with the service-connected disability. The Veteran submitted a private medical opinion dated September 2021 by Dr. M.M., stating that he was the Veteran's primary care physician during and following his treatment for right tonsillar squamous cell carcinoma, to include surgery with right neck dissection, chemotherapy and radiation. After completing cancer treatment, the Veteran was diagnosed with GERD and right-sided neck neuropathy, which are common side effects of this course of treatment. The Veteran is treated with prescription-strength proton pump inhibitors for his GERD and physical, speech and occupational therapy for his neck neuropathy. He stated that it his professional medical opinion that both the Veteran's GERD and neck neuropathy were caused by his throat cancer treatment. The private examiner's opinion is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the June 2018 private medical opinion by Dr. M.M. states that post-cancer treatment issues for the Veteran include hypoglossal nerve damage with swallowing problems, aspiration of food and liquid products, right-sided neck and jaw spasms, right trapezius spasms, head shakes and slurred speech. Private and VA medical treatment records indicate the presence of such symptoms. (Continued on the next page) In conclusion, after a review of all the evidence, and after resolving all doubt in favor of the Veteran, the Board finds that the weight of the evidence shows that the Veteran's GERD/hiatal hernia and trigeminal and hypoglossal cranial neuropathy disabilities were caused by the Veteran's service-connected metastatic right tonsillar squamous cell carcinoma. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that secondary service connection for GERD/hiatal hernia and trigeminal and hypoglossal cranial neuropathy are warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.