Citation Nr: 21011413 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-57 109 DATE: March 1, 2021 ORDER Service connection for squamous cell carcinoma of the pharynx is granted. FINDING OF FACT The competent medical and other evidence of record reflects it is at least as likely as not the Veteran developed squamous cell carcinoma of the pharynx as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for squamous cell carcinoma of the pharynx are met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to January 1971, including service in the Republic of Vietnam. The Appellant is the Veteran’s surviving spouse and has been recognized as the substitute claimant in the Veteran’s appeal. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was held before the undersigned Veterans Law Judge (VLJ) in December 2020. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence for certain diseases, including diabetes and ischemic heart disease, will be presumed based on an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for squamous cell carcinoma of the pharynx The medical evidence shows that the Veteran had respiratory cancer, diagnosed as squamous cell carcinoma of the pharynx, also referred to as oropharynx cancer. Service personnel records confirm that the Veteran served in the Republic of Vietnam. Given the Veteran’s service in the Republic of Vietnam, he is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). The Board recognizes that squamous cell carcinoma of the pharynx is not one of the conditions presumptively associated with herbicide exposure under 38 C.F.R. § 3.309 (e). Nevertheless, Courts have held this does not preclude the Veteran from establishing service connection secondary to herbicide exposure with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran received a VA examination in March 2015 which confirmed the diagnosis of squamous cell carcinoma of the pharynx. The examiner did not, however, provide an opinion regarding the etiology of the claimed condition. In November 2019, the Appellant submitted a medical opinion from a private oncologist who, after reviewing the Veteran’s claims file, opined that the Veteran’s known exposure to herbicide agents competes with “smoking and drinking, acting either alone or in synergy to have resulted in his oropharynx cancer.” The oncologist then stated that “[s]ince it is scientifically impossible to identify which carcinogen or combination of carcinogens was the ultimate trigger, I therefore conclude cased on the medical and scientific evidence that it is ‘at least as likely as not’” that the Veteran’s oropharynx cancer was caused by his exposure to herbicide agents. The Board finds the competent medical and other evidence of record reflects it is at least as likely as not the Veteran developed squamous cell carcinoma of the pharynx as a result of his active service. Therefore, service connection is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.