Citation Nr: 21008719 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-22 774 DATE: February 17, 2021 ORDER Entitlement to service connection for laryngeal cancer on a presumptive basis due to exposure to herbicide agents is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the requisite period to establish a presumption of exposure to herbicide agents. 2. The Veteran has been diagnosed with cancer of the larynx, a disease recognized by VA as associated with herbicide exposure, which manifested to a compensable degree after his service. CONCLUSION OF LAW The criteria for entitlement to service connection for laryngeal cancer as due to presumptive herbicide exposure in service are met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from February 1968 to March 1976, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran submitted a notice of disagreement in June 2014. A statement of the case (SOC) was issued in January 2017. The Veteran perfected a timely substantive appeal via VA Form 9 in March 2017. The Veteran and his representative appeared at a virtual Board hearing in November 2020. A transcript of the proceeding is associated with the claims file. The Board notes that evidence was added to the claims file following the January 2017 SOC. However, in light of the full grant of the benefit sought on appeal for the laryngeal cancer claim in this decision, there is no prejudice to the Veteran in proceeding with adjudication at this time. 1. Entitlement to service connection for laryngeal cancer. The Veteran contends that service connection is warranted for laryngeal cancer due to exposure to herbicide agents, including Agent Orange, during his service in Vietnam. To establish service connection for a 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran who, during active military, naval, or air 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 during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The list of diseases associated with exposure to certain herbicide agents includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 C.F.R. § 3.309(e). The Veteran’s military personnel records reflect that he served in Vietnam from September 1968 to September 1969 and received the Vietnam Service Medal and Vietnam Campaign Medal. The records also document his participation in the Vietnam Counteroffensive Phase V and Summer Fall 1969 campaigns. Therefore, exposure to herbicidal agents is presumed. 38 C.F.R. § 3.307(a)(6). The Veteran was diagnosed with squamous cell carcinoma of the left true vocal cord in 2012. He was previously diagnosed with squamous cell carcinoma of the oral cavity and tongue. A VA medical opinion was obtained in October 2013 based upon review of the Veteran’s VA medical records. The examiner noted the cancer of the left vocal cord (larynx) but determined that this condition was not caused by Agent Orange exposure. He stated the medical records indicated that the cancer of the vocal cord was a metastasis of the squamous cell carcinoma of the tongue and oral cavity from 2006 and 2007. The claims file also contains a letter dated August 2014 from the Veteran’s treating ENT specialist, Dr. M.C. In the letter, Dr. M.C. stated that although the exact cause of the Veteran’s cancers is unknown, it is known that the tongue cancer, mouth cancer, and throat cancer are separate and distinct from each other. He wrote that the time difference to presentation supports the distinction. Dr. M.C. also stated that it is well-known that any respiratory carcinogen can cause cancer throughout the entire respiratory tract, including the mouth, tongue, and throat. He opined that it is at least as likely as not that the Veteran’s exposure to Agent Orange was a factor in the development of the multiple cancers of the head and neck area. Further VA examination was done in August 2016 by a physician in otolaryngology based upon a review of the claims file and the Veteran’s VA medical records. After noting the Veteran’s multiple cancer diagnoses, the examiner opined that it is at least as likely as not that the Veteran’s cancer of the larynx is separate from his previous cancer of the tongue. He explained that while the exact cause of the oral and laryngeal cancers is unknown, and they both occurred on the left side, they are indeed distinct and separate anatomic locations. Neither one would be expected to metastasize to the other site. Metastases from both of these tumors would occur to either lymph nodes of the neck, lung, liver, or bone. Tumors of the oral cavity do not metastasize to the larynx, and the sites in question (oral cavity, vocal cord) are anatomically separate enough that neither could be considered the result of direct or regional spread. He reiterated that these are two separate cancers. The Board has carefully considered the evidence of record, including the conflicting medical opinions. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the October 2013 VA examiner made a brief statement that the Veteran’s cancer of the vocal cord was a metastasis of the squamous cell carcinoma of the tongue and oral cavity, as supported by the Veteran’s treating physicians. However, the August 2014 letter from a treating specialist found that the cancers were separate and distinct. The August 2016 VA medical opinion confirmed the findings of the private opinion and provided a detailed explanation in support of his opinion. Here, the Board finds the August 2014 letter and the August 2016 VA medical opinion highly probative as to whether the Veteran’s laryngeal cancer is separate and distinct from his previous cancer diagnoses. Accordingly, as the most probative evidence reflects that the Veteran’s laryngeal cancer is separate from the squamous cell carcinoma of the tongue and oral cavity, the Board finds that the Veteran has a distinct diagnosis of a respiratory cancer. As the Veteran is presumed to have been exposed to herbicides in the Republic of Vietnam during the relevant period, and he has a post-service diagnosis of a respiratory cancer (cancer of the larynx) which manifested to a compensable degree after service, entitlement to service connection for laryngeal cancer on a presumptive basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, Elizabeth G. 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.