Citation Nr: 21011755 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-22 599A DATE: March 2, 2021 ORDER Entitlement to service connection for squamous cell carcinoma is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s squamous cell carcinoma is etiologically related to his service. 2. The Veteran’s tinnitus is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from January 1968 to August 1969 and is a Veteran of the Vietnam Era. The Veteran served in combat as an artilleryman in the Republic of Vietnam where he earned numerous medals, including the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Agency of Original Jurisdiction (AOJ) which denied entitlement to service connection for the Veteran’s squamous cell carcinoma, and a March 2016 rating decision which granted the Veteran entitlement to service connection for his bilateral hearing loss disability but denied his claim related to tinnitus. Unfortunately, the Veteran died in January 2018, after he filed the claims on appeal. The Appellant is the Veteran’s surviving spouse and is recognized as the lawful substitute for the claims. See VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant, dated March 2018; Notification Letter, granting request, dated September 28, 2018; see also 38 U.S.C. § 5121A, 38 C.F.R. § 3.1010. A Board hearing was held in September 2019 (Board Hearing) at which the Appellant and her representative appeared. A transcript is of record. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for squamous cell carcinoma. The Veteran contends that his squamous cell carcinoma is related to his active duty service. Specifically, he asserts that exposure to herbicides, including Agent Orange, during service in the Republic of Vietnam, caused his squamous cell carcinoma. VA concedes that the Veteran had a qualifying diagnosis of squamous cell carcinoma and that he had service in the Republic of Vietnam which qualifies him to a presumption of herbicide exposure. As to the first Shedden element, the Veteran has been diagnosed with squamous cell carcinoma, and the evidentiary record is replete with medical treatment records for this disability and other cancers, after discharge from active service. The first Shedden element is satisfied. As to the second Shedden element, the Veteran served in combat in the Republic of Vietnam during the Vietnam Era; therefore, his exposure to herbicide agents is presumed under 38 C.F.R. § 3.307(a)(6)(iii), and conceded to by VA. See DD-214. The second Shedden element is also satisfied. Although squamous cell carcinoma is not on the list of disabilities presumptively connected to herbicide exposure, see 38 C.F.R. § 3.309, a non-presumptive disease may still warrant service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the crux of the Board’s review centers on whether the Veteran’s squamous cell carcinoma is directly related to his active service. In a May 2016 medical opinion letter, Dr. R. P., the Veteran’s plastic surgeon stated that he treated the Veteran for multiple skin carcinomas, including squamous cell carcinoma. He referenced two medical articles from the Journal of Plastic and Reconstructive Surgery which discuss studies that demonstrate significant increased incidents of non-melanoma type skin cancers in Vietnam Veterans who were exposed to herbicide agents. One study cited demonstrated that 51 percent of veterans exposed to Agent Orange (herbicide agent) showed non-melanoma invasive skin cancer, which was twice the average risk for men of similar age. Dr. R. P. opined that it appears highly correlated in these veterans that their exposure to Agent Orange indeed does lead to skin cancers, and in the Veteran’s case, he had multiple lesions, therefore he “believes it would be hard to prove that [the Veteran] would not have had these carcinomas occur if he had never been exposed to Agent Orange.” The Veteran treated with a private oncologist, Dr. G. T., who provided a medical opinion and treatment summary letter dated May 2016. The Veteran presented with a history of several skin cancers, including melanoma, squamous cell carcinoma, basal cel carcinoma and leiomyosarcoma, many of which were excised, some as early as 2004. Dr. G. T., opined that given the Veteran’s many skin cancers, including squamous cell carcinoma, metastatic of unknown origin and more especially sarcoma (leiomyosarcoma type) “there has to be an association with Agent Orange” as sarcomas have already shown association. Another private medical provider, Dr. R. K, a dermatologist, provided a letter dated June 2016 which indicated she had followed the Veteran for several years related to basal cell and squamous cell carcinomas. Dr. R.K., opined that these were all due to chronic sun exposure and potentially contributed to by exposure to Agent Orange. The Veteran was provided a VA examination for this disability, at the end of June 2016, and it appears as if the examiner was able to review the above referenced letters from the Veteran’s private medical providers as he makes reference to them in his report, without analysis or comparative discussion. The VA examiner did not provide an opinion as to whether he believed the Veteran’s squamous cell carcinoma was caused by or related to his military service. Instead, the examiner merely cited regulations which indicated that squamous cell carcinoma is not a disease which is afforded a presumption of service connection due to herbicide exposure. The VA examiner did note that the Veteran’s skin conditions did cause scarring or disfigurement of the head, face, and/or neck, and described these scars. Based on the VA examination, and the regulations which address the limited diseases which are afforded presumptive service connection for herbicide exposure, the AOJ denied the Veteran’s claim related to his squamous cell carcinoma. However, the AOJ granted entitlement to service connection for the Veteran’s leiomyosarcoma due to herbicide exposure. See October 12016 rating decision. There was no discussion or analysis of entitlement to service connection for his squamous cell carcinoma on a direct basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds the June 2016 VA examination to be of limited probative value as the examiner did not address the issue of service connection on a direct basis. The VA examiner seems to have reiterated that squamous cell carcinoma does not qualify for presumptive service connection and ended the analysis there. Conversely, each of the Veteran’s private medical providers explained their prolonged and detailed treatment of the Veteran for his multiple skin cancers. They all each also opined that the Veteran’s squamous cell carcinoma was related to and/or caused by his exposure to herbicide agents while he was in the Marine Corps serving in the Republic of Vietnam. Although the Veteran’s disability was not formally diagnosed until several years after service, the evidence of record establishes the condition was as a result of active duty service. See 38 C.F.R. § 3.303(d). As the preponderance of the evidence weighs in favor of the claim, entitlement to service connection for the Veteran’s squamous cell carcinoma disability is warranted. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to his active duty service in the Marine Corps where he served as a combat artilleryman in the Republic of Vietnam. VA concedes that the Veteran had a diagnosis of tinnitus, as well as profound bilateral hearing loss with sensorineural hearing loss in both his left and right ears in the frequency range of 500 - 4000 Hz. See VA audiological evaluation report, January 2016. In its March 2016 rating decision, the AOJ denied the Veteran’s claim for tinnitus because there were no complaints of tinnitus in his service treatment records (STRs), the Veteran’s post-service noise exposure levels, and that he previously told a private audiologist that he did not have any significant symptoms of tinnitus. In the same decision, the AOJ granted the Veteran’s claim for bilateral hearing loss at a significant 50 percent disability rating level. In the January 2016 VA audiological evaluation report, the VA audiologist noted that the Veteran reported symptoms of tinnitus since his time in service, but that he subsequently denied tinnitus during a November 2015 private audiological evaluation. The VA audiologist stated that she could not provide a medical opinion as to the etiology of the Veteran’s tinnitus without resorting to mere speculation due to the above referenced conflicting statements, as well as the Veteran’s post-service recreational and occupational noise exposure. No response was recorded as to whether the Veteran’s tinnitus impacted his conditions of ordinary life, including work. Notably, the VA audiologist did not opine that the Veteran’s tinnitus is less likely than so (less than 50 percent) incurred in or due to his service. The Board also notes that the VA audiologist conducted a hearing loss evaluation at the same time for which the Veteran was shown to have severe bilateral hearing loss in all tested ranges except the 500 Hz. Range. Significant disability was noted in the Maryland CNC Speech discrimination test, with a score of only 44 percent in the right ear and 72 percent in his left ear. Bilateral sensorineural hearing loss in both his left and right ears was shown in the frequency range of 500 - 4000 Hz. The examiner opined that this hearing loss was due to his service. In the above referenced November 2015 private audiological evaluation, the audiologist acknowledged that the Veteran had a sever and profound hearing loss, bilaterally, and that both the Veteran and his wife stated long-standing decreased hearing abilities for many years, which resulted in difficulty in communicating “in all settings.” Also noted were the Veteran’s military history and duties as an artilleryman for which he reported significant noise exposure and decreased hearing abilities after that time. The audiologist also noted that the Veteran had a brother with a history of hearing loss as well. Despite this, the audiologist noted that the Veteran denied any significant symptoms of tinnitus, dizziness, or headaches. There is no statement of the questions posed to the Veteran to determine this assessment, except that which is written in the report. In a subsequent VA addendum medical opinion, a different VA audiologist noted the Veterans medical history and statements related to his tinnitus and also opined that an opinion as to whether or not the Veteran’s current tinnitus is related to his hearing loss cannot be made without resorting to mere speculation. This was not a negative nexus opinion. The Veteran has provided lay statements that he suffered from symptoms of tinnitus since his service with the Marines. These were acknowledged in his VA audiological examinations, as well as his March 2016 written statement. The Board finds these statements to be both competent and credible, as well as highly probative in this case. 38 C.F.R. § 3.159 (a), see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After careful review of the evidence, the Board finds that the preponderance of the evidence supports the contention that it is at least as likely as not that the Veteran’s current tinnitus is related to service. Although the Veteran’s disability was not formally diagnosed until several years after service, the evidence of record establishes the condition was incurred during active duty service. 38 C.F.R. § 3.303(d). Given the Veteran’s statements that he did have tinnitus symptoms since service and the fact that the Veteran was a combat artilleryman in the Marines, the evidence is strong in support of the Veteran’s claim. The claim for entitlement to service connection for the Veteran’s tinnitus is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.