Citation Nr: 21009269 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-11 601 DATE: February 22, 2021 ORDER Entitlement to service connection for parotid gland cancer, to include as due to herbicide exposure, is denied. FINDING OF FACT The evidence of record is against finding that the Veteran’s parotid gland cancer occurred in, or is the result of, his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for parotid gland cancer, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran unfortunately passed away on February 28, 2020. The Appellant is the Veteran’s surviving spouse and has been substituted for the Veteran by VA for the purpose of adjudicating this claim. See September 9, 2020, Substitution Approval Letter. Before his death, the Veteran argued that his parotid gland cancer is one that “forms in the parotid gland, the largest of the salivating glands, which make[s] saliva and release[s] it into the mouth, which makes it a soft tissue sarcoma, which is on the Agent Orange disease list.” The Veteran further argued that he served aboard the USS Ticonderoga, which was within the offshore waters of Vietnam. See May 23, 2019, Appellant’s Brief; April 1, 2019, VA Form 9. In January 2020, the Board previously addressed this claim. It remanded the issue back to the agency of original jurisdiction for further development. VA first was to obtain ship logs and any other relevant information to determine whether the USS Ticonderoga entered the offshore waters of Vietnam, pursuant to 38 U.S.C. Section 1116A, thereby qualifying the Veteran for a presumption of exposure to herbicides. If such exposure could be presumed, VA then was to obtain a medical opinion regarding whether the Veteran’s parotid cancer is indeed a soft-tissue sarcoma; if not, an examiner was to answer whether herbicide exposure could have caused the Veteran’s carotid cancer, responding to an article submitted by the Veteran. In a February 2020 VA Memorandum, VA conceded, after conducting additional research, that the Veteran, as serving aboard the USS Ticonderoga, presumably was exposed to herbicides. In November 2020, VA obtained the requisite medical opinion (discussed more fully below) per the Board’s remand instructions. With VA substantially having complied with the Board’s prior instructions, the Board now may proceed to adjudicate this claim. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain diseases with a relationship to herbicide agent exposure, including soft-tissue sarcoma, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(i)–(iv), 3.309(e). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Service treatment records (STRs) do not show complaints of, treatment for, or diagnosis of any form of cancer during service. As discussed above, the Veteran served aboard the USS Ticonderoga, which entered the offshore water of Vietnam. The November 2020 opinion obtained by VA contained the following: Veteran was diagnosed with cancer of the left parotid gland by biopsy/path report dated 8/5/1994. According to the Fresno VA outpatient surgery note dated 8/25/1999, [V]eteran was almost 5 years post operative from his left parotidectomy at that time, and was doing well with no evidence of recurrence. This type of cancer is NOT a form of soft tissue sarcoma. The above-noted pathology report stated that the cell type for the cancer was mucoepidermoid carcinoma. Per Up-To-Date: “The most common malignant salivary gland tumors are mucoepidermoid carcinoma and adenoid cystic carcinoma, which together comprise approximately one-half of all malignant salivary gland tumors.” Up-To-Date mentions that radiation may be a risk factor, but only mentions that exposure in the context of radiation at doses such as ‘atomic bomb survivors in Japan’, and ‘in long-term cancer survivors who received radiation therapy as part of their treatment for Hodgkin lymphoma.’ There is also no mention of Agent Orange in the section of other environmental exposures. Parotid gland carcinoma (and, specifically, not mucoepidermoid carcinoma) is NOT one of the presumptive conditions from AO exposure on the list created by the IOM. The ‘article’ titled “Why Veterans may Have a Higher Risk of Salivary Gland Cancer” is NOT an actual article from a peer-reviewed journal. It is from a newsletter, and merely states that AO “has the potential to injure DNA cells”(?!!?). There is no such thing as a DNA cell....all cells other than RBC’s have DNA. Such verbiage would never have passed the medical terminology phase of any editor for a peer-reviewed journal. The newsletter continues...“The disrupted DNA cells may lead to abnormal growths. Tumors can form in any part of the salivary gland, but they occur 80% of the time in the parotid gland.” This verbiage contains basic medical terminology errors that would not be made by anyone who graduated from medical school. Non-existent “DNA cells” are again mentioned, and the parotid gland is not PART of a salivary gland, but it IS one of the salivary glands themselves (named by anatomic location). All of the above reveals that this “article” is clearly not from a reputable journal. Additionally, the (implied, if one reads past the verbiage errors) statements about the potential for AO to cause DNA damage is speculative, and does not even state that such potential DNA damage would actually result in a mutation leading to malignancy. As such, it is less likely than not that [V]eteran’s carcinoma of the parotid gland was caused by his conceded exposure to herbicides. Also, based on review of the STRs, it is also LESS likely than not that the [V]eteran’s carcinoma of the left pa[r]otid is due to or was incurred by any event, symptom or condition in service. CPRS and VBMS were reviewed. The Board acknowledges that the Veteran had cancer of the parotid gland during this appeal. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Board also acknowledges that VA has conceded the Veteran’s exposure to herbicides after conducting research about the USS Ticonderoga. Thus, the second element of service connection also has been satisfied. See 38 U.S.C. §§ 1116(f), 1116A; Romanowsky, 26 Vet. App. at 293; 38 C.F.R. §§ 3.303(a), 3.307(a)(6). Presumptive service connection for herbicide exposure, however, is not applicable in this case. As the November 2020 VA examiner noted, the August 1999 pathology reported indicated that the Veteran’s type of cell cancer was mucoepidermoid carcinoma, which is not a soft-tissue sarcoma. Thus, the application of presumptive service connection is not applicable. See 38 C.F.R. § 3.309(e). This finding, however, does not preclude the Appellant from obtaining benefits on the basis that the herbicide exposure directly caused the Veteran’s parotid gland cancer, and the Board now will address that theory. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). With respect to the third element of direct service connection, the Board finds the evidence of record insufficient. The November 2020 examiner provided an in-depth opinion answering why exposure to herbicides directly did not cause the Veteran’s cancer. The examiner noted that the current medical literature supports a link between parotid gland cancer and large amounts of radiation exposure, but that links to herbicides and this type of cancer have not been shown. Furthermore, the examiner evaluated the Veteran’s submitted medical literature and discussed why that article is unpersuasive. Firstly, it is not a peer-reviewed journal but rather a newsletter. The examiner pointed out several reasons why this article lacks credibility among the medical community, namely incorrect medical terminology and substantive medical facts. The examiner even went so far as to say that some of these mistakes would not have been made by “anyone who graduated from medical school.” Overall, the examiner was confident that it was less likely than not that the Veteran’s active duty service, to include conceded exposure to herbicides, caused the Veteran’s cancer. While the Veteran and the Appellant may believe that the Veteran’s cancer was (1) a soft-tissue sarcoma and/or (2) directly caused the Veteran’s cancer, neither of them are trained professionals competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The November 2020 examiner on the other hand, has the necessary training and expertise to opine and such manners and did so in a thorough, adequate manner. He likewise explained, to the Board’s satisfaction, why the Veteran’s submitted article should be discounted as sound medical evidence. Thus, the Board affords that article little probative value on appeal. Neither the Veteran, before his passing, nor the Appellant, to present date, has supplied the Board with any independent opinion by a competent and credible medical professional. Thus, the Board affords the November 2020 VA opinion considerable probative value on appeal, as it is uncontradicted by any other competent and credible evidence of record. Therefore, the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Appellant’s claim for entitlement to service connection for the Veteran’s parotid gland cancer, her appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.