Citation Nr: 21028688 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-38 938 DATE: May 11, 2021 ORDER Service connection for throat cancer as due to exposure to herbicides is granted. FINDING OF FACT Resolving any reasonable doubt in favor of the Veteran, the preponderance of the evidence is not against finding that his throat cancer is more likely than not due to his herbicide exposure in-service. CONCLUSION OF LAW The criteria for service connection for throat cancer as due to exposure to herbicides are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1968, to include service in the Republic of Vietnam. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the claims file at a later date. Service Connection Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Regulations create a presumption of service connection for certain diseases, including lung cancer, found to be associated with exposure to an herbicide agent such as that used in Agent Orange. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d), 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 that herbicide exposure is established. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). Throat Cancer While throat cancer is not on the presumptive list of conditions for service connection due to exposure to herbicides in-service, direct service connection is available. The evidence of record shows that the Veteran's exposure to herbicides was conceded. Medical opinions and articles regarding the possible link between exposure to herbicides and throat cancer have been submitted. Though the medical opinions submitted by the Veteran ultimately concluded that a definitive link between the Veteran's throat cancer and his exposure to herbicides in-service could not be provided without speculation, the physicians did note that there was a possibility of a proximate link between the Veteran's cancer and his exposure to herbicides. After review of the record, the Board finds that the preponderance of the evidence is not against the Veteran's claim. Thus, the standard for denial of the Veteran's claim has not been met. The Board is specifically reminded that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, the Board finds that a fair preponderance of the evidence does not weigh against the claim and, as such, service connection for throat cancer as due to exposure to herbicides in service is warranted. Brown v. Brown, 5 Vet. App. 413 (1993). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.