Citation Nr: 21013207 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-32 637 DATE: March 9, 2021 ORDER Entitlement to service connection for squamous cell carcinoma of the base of the tongue (claimed as cancer of the neck), to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death, a claim for entitlement to service connection for squamous cell carcinoma of the base of the tongue was pending. 2. Squamous cell carcinoma of the base of the tongue was not shown in service or for many years thereafter, and the most probative evidence is against finding that the diagnosed squamous cell carcinoma is related to service, to include as due to presumed herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of the base of the tongue have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1970 to January 1990, to include service in the Republic of Vietnam from March 1971 to January 1972. His medals include the Republic of Vietnam Gallantry Cross with Palm Unit Citation, among other citations. The Veteran passed away in July 2011. The Appellant is the Veteran’s surviving spouse and has been substituted as claimant. See 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran and his physician testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In her July 2020 substantive appeal, the Appellant requested a Board hearing. She subsequently withdrew the request for a hearing in November 2020 correspondence. This matter was previously before the Board in May 2014, when it was remanded for further development. 1. Entitlement to service connection for squamous cell carcinoma of the base of the tongue, to include as due to herbicide agent exposure Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include malignant tumors, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, service connection for certain specified diseases, including respiratory cancers (cancer of the lung, bronchus, larynx or trachea), may be granted on a presumptive basis if the Veteran served during specified time periods, was exposed to an herbicide agent and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. § 3.07(a)(6), 3.309(e). A veteran who 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 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)(iii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. However, when a veteran is not found to be entitled to a regulatory presumption of service connection, service connection may also be established on a direct basis with proof of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In June 2008, the Veteran filed a claim for service connection for squamous cell carcinoma of the neck, which was pending at the time of his death in July 2011. The Appellant asserts, in essence, that the Veteran’s squamous cell carcinoma of the base of the tongue was caused by exposure to herbicide agents while stationed in Vietnam and performing duties in and around Da Nang. She also asserted that the base of the tongue is a part of the respiratory system and therefore is a respiratory cancer eligible for presumptive service connection due to herbicide exposure under 38 C.F.R. § 3.309(e). See June 2008, September 2008 and December 2009 statements and the Veteran’s 2011 Board hearing testimony. During the March 2011 Board hearing, the Veteran stated that his carcinoma was not present in service or within the year following his 1989 separation from service, as he was diagnosed in 2005, and that he was seeking service connection on a presumptive basis due to herbicide exposure. The Veteran’s physician, Dr. T. J., also testified at the Board hearing. He stated that he is only aware of Agent Orange peripherally and that it has been associated with carcinogenesis in the respiratory tract; that he treated the Veteran since 2005 for advanced cancer that involved the back of the tongue, called the tongue base; that cancers of the respiratory tract are frequently caused by exposure to environmental carcinogens, of which the most acknowledged and best studied is tobacco; and that individuals develop carcinoma of the respiratory tract without a history of smoking, which suggests that other chemicals are involved. The physician stated that the Veteran smoked cigarettes until about 1975. The medical evidence of record shows that, prior to his death, the Veteran was diagnosed in July 2005 with squamous cell carcinoma of the base of the tongue, as shown on a July 2005 biopsy. Thus, the question for the Board is whether this condition is related to service, to include herbicide exposure therein. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis pertaining to cancer of the tongue. Further, his June 1969 and October 1975 service examinations and October 1989 separation examination indicate his mouth, throat and lungs were normal. The Veteran denied throat trouble, shortness of breath, and any tumor, growth, cyst or cancer in the accompanying June 1969, October 1975 and October 1989 reports of medical history. Post-service treatment records are silent for any symptoms or diagnosis of squamous cell carcinoma of the base of the tongue until decades after service. In this regard, an August 2005 private treatment letter indicates that the Veteran sought treatment in June 2005 when he noticed a mass in the left base of his tongue, which was preceded by approximately one month of stiffness in the left jaw; a subsequent biopsy confirmed the diagnosis of squamous cell carcinoma of the left base of the tongue; and the Veteran underwent concurrent chemotherapy and radiation therapy. See July 2005, February 2006, August 2006 and April 2007 private treatment records. The Veteran service personnel records show that he served in Vietnam from March 1971 to January 1972. Thus, the Veteran is presumed to have been exposed to herbicide agents. See March 2011 hearing transcript. Squamous cell carcinoma of the base of the tongue, however, is not among the conditions identified as being presumptively related to herbicide exposure. See 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). The Appellant asserts that the base of the tongue is part of the respiratory system and thus, is a respiratory cancer, which is a presumptive condition under 38 C.F.R. § 3.309(e). The Board notes that regulations governing presumptive service connection for respiratory cancers based on Agent Orange exposure is limited to cancers of the lung, bronchus, trachea and larynx. Id. Thus, the issues before the Board are whether the Veteran’s carcinoma of the base of the tongue is a cancer of the lung, bronchus, larynx or trachea; and if not, whether service connection is warranted as directly related to herbicide exposure. See Combee, 34 F.3d at 1042. After considering and reviewing the record, the Board finds that the preponderance of competent and probative evidence is against finding that service connection is warranted on a presumptive or direct basis. The claimant submitted several opinions from private clinicians who opined that the tongue should be considered part of the respiratory system and that the Veteran’s cancer was caused by exposure to Agent Orange. Specifically, in a July 2008 opinion, Dr. T. J., the Veteran’s physician, stated that the Veteran was diagnosed in 2005 with advanced, Stage IV squamous cell carcinoma involving the base of the tongue and that the base of the tongue is part of the respiratory tract. He opined that the Veteran suffered from a cancer which may have been caused in part through herbicide exposure during active service. In a second opinion provided in January 2009, the physician stated that Agent Orange has been implicated as causative of cancer of the upper aerodigestive tract; that the base of the tongue, a portion of the anatomic area called the oropharynx, is part of the aerodigestive tract which is in continuity between the nasopharynx and the lungs; and that the adjacent mucosal surfaces may develop carcinoma due to exposure to chemical agents such as Agent Orange. He opined that it is as likely as not (a greater than 50 percent probability) that the development of this tumor was caused by exposure to Agent Orange. In a March 2010 statement, Dr. T. J. opined that the Veteran’s tongue base cancer is a respiratory cancer (oropharyngeal) and that the tumor is probably service-connected. The physician also testified at the Board hearing, as discussed above. His curriculum vitae was submitted for the record. In an undated statement received in August 2008, Dr J. B., a private physician, stated that he had treated the Veteran for squamous cell carcinoma of the left tonsil since August 2005 and that, among the eleven illnesses presumed by VA to be service-connected (as per the second chapter of the Federal Benefits for Veterans and Dependents), the Veteran falls within the realm of respiratory cancers, specifically the pharynx, larynx and trachea. He stated that that Veteran’s tumor was located within the respiratory system. Two statements from Dr. T. E., a private physician, were also submitted. In an undated statement received in March 2008, the clinician stated that the base of tongue is part of the respiratory system and therefore was subject to the same detrimental inhaled carcinogens that the Veteran was exposed to in Vietnam. He stated that his opinion is congruent with the National Cancer Institute’s statement that “many cancer[s] caused by exposure to carcinogens in the environment could require a time lapses of many decades before symptoms of any disorder would manifest itself.” In a December 2008 statement, Dr. T. E. stated that he had treated the Veteran since June 2007 and the Veteran has been diligently pursuing a claim that his exposure to dioxin may have contributed to the cancer formation at the base of the tongue. He opined that the cells at the base of the tongue could react the same way as cells in the larynx, bronchus, trachea or lungs when exposed to dioxin and that, in the absence of exposure to any other environmental causes, the cancer at the base of the tongue could at least as likely as not be the result of exposure to Agent Orange during the Veteran’s service in Vietnam. Following the Board’s May 2014 remand, VA opinions were provided in March 2020 and May 2020, in which the VA examiner opined that the primary site of the Veteran’s cancer was the base of the tongue and/or tonsil and that the Veteran’s squamous cell cancer of the tongue is not classified as a cancer of the lung, bronchus, larynx or trachea. The examiner reasoned that a July 2005 biopsy documented a biopsy procedure of a tonsil and that private medical records throughout the appeal support squamous cell carcinoma of the base of the tongue, which he noted is a contiguous structure with the tonsil; and that neither of these structures (tonsil or tongue) is lung, bronchus, larynx or trachea. Addressing whether the Veteran’s squamous cell carcinoma of the base of the tongue was etiologically related to the Veteran’s presumed Agent Orange exposure, he opined that it was less likely than not that Agent Orange caused the Veteran’s squamous cell carcinoma of the base of the throat. He reasoned that the medical treatment records fail to establish a causal mechanism between the Veteran’s squamous cell carcinoma and Agent Orange exposure. The examiner attributed the squamous cell carcinoma to the Veteran’s well-documented twenty pack year history of smoking, which he explained is nearly universally accepted as the most likely cause of a squamous cell carcinoma of the tongue or tonsil in the setting of a smoker. He cited specific medical evidence of record documenting a history of tobacco and alcohol history. He concluded that the known, daily, repeated carcinogenic effects of tobacco smoke over many years far outweigh a presumptive, short-term, periodic or possible exposure to a substance that may cause cancer. The post-service medical treatment records do not suggest an association between or otherwise link the Veteran’s squamous cell carcinoma of the base of the tongue to service or herbicide exposure. The Board notes that the medical evidence shows that the Veteran consistently reported to his medical providers that he smoked one pack of cigarettes per day for approximately 20 years and that he quit smoking in approximately 1989 or 1990 and that he had a 20 year history of moderate alcohol use and that he quit in approximately 1995. See, e.g., October 1989 service separation examination and private treatment records in August 2005, February 2006, April 2007, September 2007 and July 2009. The Board finds the Veteran’s statements regarding his significant history of smoking are credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). After considering and reviewing the evidence of record, the Board finds that the presumptive provisions of 38 C.F.R. § 3.307(a)(6) and 3.309(e) do not apply in this case because the most probative evidence indicates that the Veteran’s carcinoma of the base of the tongue is not a cancer of the lung, bronchus, larynx or trachea. Although Dr. T. J., Dr. J. B., and Dr. T. E. asserted that the base of the tongue is part of the oropharynx and respiratory/aerodigestive tract and located within the respiratory system, none of the clinicians indicated that the Veteran’s squamous cell carcinoma of the base of the tongue is a cancer primarily sited in the lung, bronchus, larynx or trachea. Rather, their premise is that the pharynx is part of the respiratory tract. However, the regulation specifically defines the respiratory tract, and the pharynx is not included. Thus, while the physicians conclude that the Veteran’s tongue base cancer is a respiratory cancer of the oropharynx, oropharyngeal cancers are not a ‘respiratory cancer’ as defined by VA regulations. The physicians also did not substantiate their conclusions with an adequate rationale and the opinions are speculative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Thus, the Board does not find these opinions probative or persuasive. Conversely, the March 2020 and May 2020 VA examiner concluded that the primary site of the Veteran’s cancer is the base of the tongue and/or tonsil and is not a cancer of the lung, bronchus, larynx or trachea. The Board finds the VA opinion significantly more probative than the statements of the private clinicians, as it was rendered after thorough review of the claims file and supported with an adequate rationale that is consistent with the evidence of record. See Nieves-Rodriguez v. Peake, at 302-304. As such, the Board finds that squamous cell carcinoma of the base of the tongue is not a respiratory cancer of the lung, bronchus, larynx or trachea. Accordingly, and service connection for carcinoma of the base of the tongue based on the Veteran’s presumed exposure to herbicide agents is not warranted. See 38 C.F.R. §§ 3.307, 3.309(e). The Board also finds that service connection is not warranted on a direct basis. As discussed above, the March 2020 and May 2020 VA examiner opined that the Veteran’s squamous cell carcinoma of the base of the throat was less likely than not caused by Agent Orange exposure, while private opinions submitted by the claimant opined that the Veteran’s carcinoma was more likely than not related to herbicide exposure. After considering and reviewing the evidence, the Board finds the most probative evidence is against finding that the squamous cell carcinoma of the base of the tongue was directly caused by service or exposure to herbicide agents. On this question, the Board finds that the March 2020 and May 2020 VA opinions, discussed above, are the most probative and persuasive. The combined opinions were based on a thorough review of the record, reflect consideration of the reported medical history, to include the Veteran’s reported twenty-year tobacco history, and supported with a reasoned medical explanation that is consistent with the evidence and applied to the Veteran’s specific circumstances. Further, the VA examiner attributed the Veteran’s squamous cell carcinoma to other risk factors, namely, a twenty-year history of smoking tobacco. See Nieves v. Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board assigns significantly less probative value to the opinions of the private clinicians. More specifically, while Dr. T. J. opined in his July 2008, January 2009 and March 2010 opinions that the Veteran’s cancer “may have been caused in part” by herbicide exposure; that the mucosal surfaces “may develop” carcinoma due to chemical exposure; and that the tumor “is probably” service-connected; and while Dr. T. E. opined in his December 2008 opinion that the base of the tongue “could” react the same way as cells in the larynx, bronchus, trachea or lungs when exposed to dioxin, the Board affords these opinions little probative weight, as they are speculative and not supported by an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion … must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor’s statement that a veteran’s brain tumor “may well be” connected to Agent Orange exposure was speculative); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative). Moreover, the positive nexus opinions provided by Dr. T. J.’s are based on an inaccurate factual premise and therefore have little probative value. In this regard, while the physician testified at the Board hearing that the most acknowledged and best studied environmental carcinogens associated with cancers of the respiratory tract is tobacco, his opinion was based on the inaccurate factual premise that the Veteran stopped smoking in 1975, when, in fact, the record, as discussed above, reflects that the Veteran consistently reported during medical treatment that he quit smoking in 1989 or 1990. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). The Board also assigns minimal probative weight to the March 2008 positive nexus opinion of Dr. T. E., which is based on the absence of other known risk exposures, including tobacco smoke, yet does not address or acknowledge the Veteran’s significant smoking history. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion … must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Accordingly, the Board finds the VA examiner’s opinions the most probative and persuasive. The Board has considered and reviewed the article submitted by the Veteran in August 2008, entitled “EPA: Dioxin Does Cause Cancer in Humans,” in which the author suggests that exposure to dioxin causes cancer in humans. However, this article is not specific to the Veteran or his medical history and does not link the cause of the Veteran’s carcinoma of the base of the tongue to his service or presumed herbicide exposure. Thus, the article is afforded little, if any, probative weight. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a general medical journal article that did not specifically opine as to the causal relationship between the veteran’s condition and active service was too general to satisfy the nexus element of a service connection claim). The Board has reviewed the other Board decisions submitted in January 2009 and those cited in the Veteran’s December 2009 statement but does not find these persuasive. Although the Veteran asserted in a January 2009 statement that these cases are clinically identical to his own, the evidentiary records of the other veterans are, in relevant parts, substantially different from the present case on appeal, particularly with respect to that veteran’s history of smoking. Each case presents different facts which, of necessity, yield different outcomes. Ultimately, the Board must make its determinations based on de novo consideration of the facts of the case being decided. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 20.1303. The Board is sympathetic to the Appellant’s belief that squamous cell carcinoma of the base of the tongue is a respiratory cancer and, as such, is eligible for presumptive service connection due to herbicide exposure under VA regulations. The Board also acknowledges her belief that the Veteran was not predisposed to getting cancer and the June 2008 submission outlining the family history. However, as a lay person, the claimant has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis, classification and etiology of carcinoma of the base of the tongue are matters not capable of lay observation and require medical evidence to determine. Thus, the claimant’s opinion as to the primary site and etiology of the Veteran’s squamous cell carcinoma of the base of the tongue is not competent evidence. The Board finds the VA examiner’s opinions to be significantly more probative than the lay assertions and submissions. The Board greatly appreciates the Veteran’s service to this country. However, the preponderance of competent and probative evidence is against finding that service connection for squamous cell carcinoma of the base of the tongue is warranted on a presumptive or direct service connection basis, and the claim is denied. In reaching this conclusion, the Board considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.