Citation Nr: 21023999 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-00 150 DATE: April 21, 2021 ORDER Entitlement to service connection for residuals of laryngeal cancer (claimed as throat cancer), to include as due to exposure to herbicide agents, is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the requisite period to establish a presumption of exposure to herbicide agents. 2. Resolving reasonable doubt in the Veteran’s favor, his residuals of laryngeal cancer are at least as likely as not related to an in-service injury, event, or disease to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for residuals of laryngeal cancer, as due to exposure to herbicide agents, are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.307, 3.309(e), 3.313. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1970 until his discharge in April 1973, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Vietnam Campaign Medal. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Most recently, in September 2018, the Board denied entitlement to service connection for headaches, denied service connection for a psychological disorder, denied entitlement to an initial compensable rating for bilateral hearing loss, granted entitlement to service connection for diabetes mellitus type II, and remanded entitlement to service connection for a throat disorder, claimed as throat cancer and including residuals of throat cancer, for an examination and medical opinion. An October 2018 rating decision granted service connection for diabetes mellitus type II effective December 9, 2011; thus, this issue is no longer on appeal. The issue of entitlement to service connection for residuals of laryngeal cancer (claimed as throat cancer) is once again before the Board. The Board finds there has been substantial compliance with the September 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In accordance with the September 2018 remand directives, the Regional Office requested an examination to determine the current level of his disability. The Board notes, the Veteran failed to RSVP for the examination, resulting in the examination being cancelled. See April 2020 Supplemental Statement of the Case. The Veteran did not provide good cause for failing to RSVP for his examination. Therefore, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655. Entitlement to service connection for residuals of laryngeal cancer as a result of exposure to herbicide agents. The Veteran contends his throat cancer had its onset during military service. See December 2011 VA Form 21-526. The Board acknowledges that the Regional Office characterized the Veteran’s disability as service connection for throat cancer. However, his Tampa VA Medical Center (VAMC) treatment records show the Veteran has had no signs of cancer recurrence since he was treated with radiation therapy (XRT) in 1992. Therefore, the Board has stated the issue as it appears above pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is also a presumption of service connection for certain diseases found to be associated with exposure to “herbicide agents.” 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided herbicide exposure is established. 38 C.F.R. § 3.307(d). The presumption removes the need to prove a nexus, or causal relationship, between the current diagnosis and the in-service exposure. The term “herbicide agent” means a chemical in an herbicide, such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Note, the Vietnam era began on February 28, 1961, for any Veteran who served in the Republic of Vietnam during that period. 38 C.F.R. § 3.2(f). VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases, such as respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Veteran who was exposed to herbicide agents and who later develops laryngeal cancer. 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 (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 VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must be greater against the claim than for it. Alemany v. Brown, 9 Vet. App. 518 (1996). Based upon the evidence of record, the Board determines service connection for residuals of the Veteran’s laryngeal cancer is warranted. In this case, the Board finds the evidence is sufficient to demonstrate that the Veteran may be presumed to have been exposed to herbicide agents. The Veteran’s DD Form 214N, Armed Forces of the United States Report of Transfer or Discharge, reflects the Veteran “served in Vietnam” and he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. As such, the Board concludes the Veteran’s exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6). Next, the Veteran’s post-service treatment records confirm the Veteran underwent a laryngeal biopsy and right vocal cord biopsy in December 1992. The Veteran was diagnosed with invasive squamous cell carcinoma, moderately differentiated. See December 1992 Sutter Solano Medical Center treatment records; see also Tampa VAMC treatment records confirming a history of malignant neoplasm of larynx. Additional medical records suggest residuals from the Veteran’s laryngeal cancer, to include intermittent dysphonia and possible scarring of the vocal folds. See February 2011 VA videostroboscopy. As the Veteran is presumed to have been exposed to herbicide agents during his active service, and he has a post-service diagnosis of a respiratory cancer (cancer of the larynx), the presumption of service connection for residuals of laryngeal cancer attaches. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, service connection for residuals of laryngeal cancer is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.