Citation Nr: 21023449 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-23 044 DATE: April 20, 2021 ORDER Service connection for squamous cell carcinoma is granted. FINDING OF FACT The Veteran’s squamous cell carcinoma is due to presumed Agent Orange exposure during service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1968 to January 1970 with service in Vietnam from June 1968 to June 1969. The Veteran died in December 2014, and the appellant is the Veteran’s surviving spouse. She has been properly substituted as appellant in this case. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Squamous Cell Carcinoma The Appellant contends the Veteran’s squamous cell carcinoma was due to Agent Orange exposure in Vietnam during service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307, 3.309(e). The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; Ischemic heart disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). This list does not include squamous cell carcinoma; thus, service connection on a presumptive basis is not available here. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s service records show service in the Republic of Vietnam from June 1968 June 1969. Hence, exposure to Agent Orange is presumed. Medical records show a diagnosis of squamous cell carcinoma. See November 2013 private treatment records. The Board will now turn to the question of nexus. The Veteran was afforded a July 2014 VA examination following an initial presumptive claim for service connection for soft tissue sarcoma. Although the examiner identified the Veteran’s diagnosis as soft tissue sarcoma, later submitted private radiology records clarified that the diagnosis of soft tissue sarcoma was erroneous, as the Veteran’s diagnosis was in fact squamous cell carcinoma. The July 2014 examiner’s opinion, therefore, did not offer an opinion on whether the Veteran’s proper diagnosis of squamous cell carcinoma is etiologically related to service on a direct basis. The Appellant provided a July 2018 opinion from a private treatment provider who treated the Veteran for years before his death. There, the physician stated the Veteran’s prolonged Agent Orange exposure “likely caused” his squamous cell carcinoma of the parotid gland with subsequent metastasis. The physician noted squamous cell carcinoma of the parotid gland is quite rare and the proposed etiology is radiation exposure or exposure to chemicals, especially carcinogens. The Board finds the physician’s opinion probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It confirms the diagnosis and establishes a nexus to Agent Orange exposure in service. In light of the probative opinion from the private treatment provider and in the absence of any evidence to the contrary, the Board finds the evidence is at least in equipoise as to whether the Veteran’s squamous cell carcinoma was a result of his in-service exposure to Agent Orange. Upon review of the record, when resolving reasonable doubt in the Veteran’s favor, the Board finds that disability was related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for squamous cell carcinoma. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.