Citation Nr: 21005435 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-09 198 DATE: February 1, 2021 ORDER Service connection for metastatic salivary duct carcinoma, to include as secondary to service-connected diabetes mellitus, is denied. Service connection for a dental condition, to include as due to metastatic salivary duct carcinoma, is denied.   FINDINGS OF FACT 1. The Veteran’s metastatic salivary duct carcinoma was not due to Agent Orange exposure during service or secondary to a service-connected disability. 2. The Veteran did not have a dental condition eligible for VA compensation. CONCLUSIONS OF LAW 1. The criteria for service connection for metastatic salivary duct carcinoma, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a dental condition, for purposes of compensation, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1967. The Veteran died in January 2016. The appellant is his surviving spouse who has been substituted in this pending appeal under 38 C.F.R. § 3.1010. This matter is on appeal from a February 2013 rating decision. The Board previously remanded this matter in November 2019 and June 2020. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and the appellant, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 1. Service connection for metastatic salivary duct carcinoma, to include as secondary to service-connected diabetes mellitus. The appellant contends that the Veteran’s metastatic salivary duct carcinoma was caused by his diabetes mellitus. Alternatively, she contends that the Veteran’s metastatic salivary duct carcinoma was caused by in-service exposure to herbicide agents. A. Applicable Law 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; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; 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; 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 lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. B. Discussion The Veteran was diagnosed with metastatic salivary duct carcinoma during his lifetime. This includes a diagnosis made at VA in July 2012. Thus, the current disability element of the claim is established. The evidence also shows that that the Veteran served in the Republic of Vietnam during the Vietnam era. Service connection for multiple other disabilities has been previously granted based on his presumed exposure to herbicides during that Vietnam service. Thus, the in-service element of the claim is established. However, service connection on a presumptive basis cannot be granted. The Veteran’s metastatic salivary duct carcinoma is not a presumptive condition associated with Agent Orange exposure listed in 38 C.F.R. § 3.309(e). That list includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), but not metastatic salivary duct carcinoma. Accordingly, service connection on a presumptive basis is not warranted. In connection with the instant appeal, a VA examiner reviewed the Veteran’s case in June 2020. With regard to Agent Orange exposure, the VA examiner opined that the Veteran’s salivary duct adenocarcinoma was less likely as not due to or aggravated by any event in service including herbicide exposure. The examiner reasoned that salivary tumors are not recognized by VA as an Agent Orange presumptive disease, and the medical literature did not support that class of herbicides or closely-related substances as causative. The Board finds this VA examiner’s opinion probative on this question. The opinion is clear and, although brief, the examiner’s rationale is cogent, understandable, and based on the available factual information. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that “direct” service connection for the condition based on Agent Orange exposure is not warranted. The appellant alternatively contends that the condition was secondary to the Veteran’s service-connected diabetes mellitus type II (diabetes) and peripheral neuropathy of the lower extremities. Service connection was in effect for these conditions. In support of the appeal, the Veteran during his lifetime submitted the abstract of a medical research article entitled Epidemiological correlations of insulin resistance and salivary gland tumors. The abstract states that the original article was in Hungarian. (A copy of that original article is not in the claims file.) According to the abstract, the research study was conducted to determine if there was any correlation among insulin resistance, type-2 diabetes, and salivary gland tumors. The results of the study, as summarized in the abstract, determined that rates of salivary gland tumors were higher and more frequent in diabetes groups. The Board finds that this abstract is somewhat favorable as it indicates a positive correlation between diabetes and salivary gland tumors. However, the probative value is minimal as it is a generic medical text that does not apply medical principles regarding causation or etiology to the facts of this veteran’s case. See McCray, 31 Vet. App. at 255. Moreover, it only posits a correlation, not causation, which is insufficient to establish secondary service connection. See Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018). In light of the information in this abstract, the Board remand for another medical opinion. The June 2020 VA examiner observed that the original article was in Hungarian and only an English abstract was available. To this extent, the VA examiner commented that the authors looked at patients in their Maxillofacial Surgery clinic with and without salivary gland tumors and compared incidence of diabetes and metabolic syndrome. According to the examiner, they described the patients with salivary gland tumors and being more likely to have diabetes or metabolic syndrome. The VA examiner found that the weakness of this report, or at least the information available in the abstract, was that there was no evidence of age or sex matching. The fact that other unrelated tumors as well as cardiovascular diseases were more common in the patients with salivary tumors suggested to this examiner that the tumor group may have been significantly older than the control group, a fact that would greatly diminish the significance of their findings. The examiner also found that there was no discussion of the diagnoses of the patients without tumors, and they lumped together all salivary tumors which are a heterogeneous group of neoplasms, mostly benign and of different causes and histologies. Plus, the examiner found significant, no other risk factors were addressed, and the authors were clear that they were addressing only association, not causation. The VA examiner’s opinion was that this abstract is insufficient to support diabetes as a cause of the instant Veteran’s salivary duct adenocarcinoma. The Board finds that this VA examiner’s discussion of the article is especially convincing. It is clear from the discussion that the VA examiner gave the abstract careful attention. It is clear the examiner carefully and objectively reviewed by the thorough description of the apparent weaknesses of the study and why it did not support the instant Veteran’s case. This examiner’s assessment is highly persuasive and probative evidence against the claim. Hence, overall, the Board finds that this abstract does not make a nexus more likely in this case. With further regard to the secondary theory, the June 2020 VA examiner opined that the Veteran’s salivary duct adenocarcinoma was less likely as not due to or aggravated by diabetes or to diabetic peripheral neuropathy. The examiner explained that review of the medical literature revealed no other evidence supporting diabetes or diabetic neuropathy as a cause for malignant tumors of the salivary glands. According to the examiner, known causes for these tumors include radiation exposure (not applicable in this case) as well as some risk related to HPV, HIV, and EB Virus infections. The examiner found no test results for these viruses, and the Veteran was not at high risk for any of them. The examiner observed that exposure to certain nickel compounds is associated with some salivary tumors, but there is no evidence that this is relevant to the Veteran. As to aggravation, the June 2020 VA examiner explained that, aside from genetic alterations in tumors, there are few medical conditions known to aggravate specific cancers. The examiner stated that there is no known aggravation of salivary tumors by diabetes, diabetic neuropathy (nor by distant exposure to herbicides). Finally, the June 2020 VA examiner opined that a previous, December 2019 VA examiner’s comments relating to the positive androgen receptor status is not relevant to the Veteran’s claim. The examiner explained that androgen receptors are commonly expressed by salivary carcinomas, and this is a genetic alteration in the tumor and does not represent a potentially causative genetic anomaly in the patient. The examiner observed that it can be clinically significant for treatment, but is not related to cause. Overall, the Board finds this June 2020 VA examiner’s opinion determinative. The VA examiner’s opinion, as indicated, is clearly stated with a cogent and compelling rationale, which is well-supported by the facts in this Veteran’s case. The examiner addressed all facets of the case, including secondary causation and aggravation. Hence, it has heightened probative value See McCray, 31 Vet. App. at 257; Nieves-Rodriguez, 22 Vet. App. at 304. As indicated by the June 2020 VA examiner, a prior VA examiner in December 2019 also reviewed the Veteran’s case. This VA examiner opined that the Veteran’s diagnosis was less likely than not related to service. The VA examiner explained that the Veteran’s tumor was noted to be androgen receptor positive which is genetic in origin, and his genetic predisposition has significantly increased his risk for development of the salivary gland carcinoma. The examiner observed that Androgen Receptor is expressed in a majority of salivary duct carcinoma. The examiner also stated that, at the time of diagnosis of salivary duct carcinoma, medical records showed diabetes without mention of complications, and there is no pathophysiological link between salivary duct carcinoma and diabetes mellitus or the peripheral neuropathy in its context. Both conditions are separate and independent as their clinical etiology and nature are unrelated. Therefore, in the examiner’s opinion, it is less likely than not (50 percent probability or lesser) that the Veteran’s metastatic salivary carcinoma was proximately due to or the result of any of the Veteran’s service-connected disabilities, to include diabetes mellitus. The Board’s June 2020 remand explained that this VA examiner’s opinion is of limited probative value because the examiner stated that the Veteran had diabetes mellitus without complications, whereas the evidence of record shows that he had peripheral neuropathy and erectile dysfunction secondary to his diabetes mellitus. Additionally, the Board observed, it was unclear if the examiner considered the medical research abstract submitted by the Veteran. As such, the opinion is of limited probative value. See McCray, 31 Vet. App. at 257; Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran during his lifetime, as well as the appellant, believe his condition was related to in-service Agent Orange exposure or secondary to a service-connected disability, they are not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical knowledge of the interaction between Agent Orange exposure, salivary gland tumors, and diabetes and diabetic complications. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for metastatic salivary duct carcinoma is not warranted. 2. Service connection for a dental condition, to include as due to metastatic salivary duct carcinoma. The appellant contends that the Veteran had periodontal disease, claimed as bone loss due to dry mouth syndrome, secondary to metastatic salivary duct carcinoma. Because the claim of compensation for the primary disability, metastatic salivary duct carcinoma, is denied, the derivative claim of service connection for periodontal disease cannot be granted as secondary service connection presupposes that there is an underlying service-connected disability. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). Moreover, a VA examiner in April 2012 opined that the Veteran’s condition was less likely than not secondary to a service-connected disability. The examiner explained that the Veteran had mild diabetes with diet and exercise diagnosed in 2020. He had gum disease/periodontitis, dental problem—implant and cadaver bone implant—with a history of dry mouth syndrome for 3 to 4 years. The examiner explained that dry mouth, gum disease, and dental problems are known to occur with diabetes, but in view of the short duration of diabetes and its mild nature (controlled with diet only), it is less likely than not that his dry mouth syndrome and dental problems, and bone loss are secondary to diabetes. A different VA examiner in July 2014 explained that the removal of the Veteran’s major salivary gland and the subsequent head and neck radiation treatments left him with a disturbance of salivary flow, causing dry mouth. The examiner explained that, if it can be determined that the cancer was service-connected, the dry mouth syndrome is at least as likely as not caused by or a result of the removal of the left parotid gland and head and neck radiation therapy due to adeno carcinoma. The Board finds these two examiner’s opinions probative. The examiners’ opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. A private dentist opined in March 2015 that due to the stage of the Veteran’s diabetes, he was experiencing bone loss caused by dry mouth syndrome which occurs with diabetes. This dentist’s treatment records include a February 2012 chart noting the Veteran’s report of dry mouth problems due to diabetes. The Board finds that this dentist’s opinion does not sufficiently support a secondary nexus. The examiner did not clarify the relationship between the Veteran’s periodontal disease and dry mouth syndrome. Thus, it is not clear from the opinion whether the Veteran’s diabetes caused periodontal disease, which in turn caused the dry mouth syndrome, or whether the diabetes directly caused the dry mouth syndrome and thereby the bone loss, notwithstanding the periodontal disease. The examiner also did not address the complicating factor of the Veteran’s cancer. Service connection for bone loss only applies to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. Here, the private opinion is too vague and imprecise to support a grant of service connection on the basis that the Veteran’s bone loss was caused by service-connected diabetes. See, e.g., 38 C.F.R. § 4.150, Diagnostic Code (DC) 9913. (Continued on the next page)   Finally, even if the Veteran’s periodontal disease was secondary to diabetes or another service-connected disability, service connection could not be granted here. Periodontal disease is a disease not eligible for VA compensation. See 38 C.F.R. § 4.150, DC 9913; Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005). As such, service connection could not be granted for the condition. In sum, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a dental condition, for compensation purposes, is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.