Citation Nr: 21030738 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-00 238 DATE: May 19, 2021 ORDER 1. The previously denied claim of service connection for throat cancer is reconsidered. 2. Service connection for residuals of squamous cell carcinoma of the right tonsil is granted. FINDING OF FACT The Veteran's squamous cell carcinoma of the right tonsil was a result of presumed exposure to herbicide agents, such as Agent Orange, during Blue Water Navy service in Vietnam. CONCLUSION OF LAW The criteria for service connection for residuals of squamous cell carcinoma of the right tonsil are met. 38 U.S.C. §§ 1110, 1116, 1116A, 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 March 1966 to January 1968. The case is on appeal from an October 2015 rating decision. In July 2020, the Veteran testified at a Board hearing. 1. Whether a previously denied claim of service connection for throat cancer should be reopened or reconsidered. The Board notes that by rating decision in March 2014, the RO denied the Veteran's claim of service connection for residuals of throat cancer based on a finding that the Veteran did not serve in Vietnam, noting that the respiratory cancers presumptively associated with exposure to Agent Orange were cancers of the lung, bronchus, larynx, or trachea The Veteran did not appeal the March 2014 rating decision. Accordingly, the March 2013 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. However, effective January 1, 2020, under the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), VA enumerated presumptive exposure to herbicides for veterans that have served offshore of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 under certain, specified circumstances. See § 38 U.S.C. § 1116A. As the BWN Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran's previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Cf. 38 C.F.R. § 3.156(a). Therefore, the claim of service connection for residuals of squamous cell carcinoma of the right tonsil will be reconsidered and reviewed de novo. 2. Service connection for residuals of squamous cell carcinoma of the right tonsil. Legal Criteria 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; 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)). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). 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, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). This includes Veterans who served within the 12-nautical-mile limit of Vietnam's territorial sea pursuant to 38 U.S.C. § 1116A of the BWN Act. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran seeks service connection for residuals of squamous cell carcinoma of the right tonsil. He maintains that cancer of his tonsil is a result of herbicide exposure, such as Agent Orange, during service in Vietnam. The Veteran's service personnel records (SPRs) reflect he served onboard the USS Saint Paul (CA-73), and his and awards and decorations include the Combat Action Ribbon and the Vietnam Campaign Medal w/60 Device. See July 1968 DD FORM 214; December 2016 DD FORM 215. Further, the RO made a favorable finding that the Veteran was exposed to herbicides, such as Agent Orange, during Blue Water Navy service in Vietnam, and thus, he is presumed to have been exposed to herbicides. See January 2020 & August 2020 rating decisions. To the extent that the RO made a favorable finding that the Veteran's squamous cell carcinoma of the right tonsil is among the list of diseases that are presumed to be due to in-service herbicide exposure for Vietnam veterans, see August 2020 rating decision, as indicated above, squamous cell carcinoma of the tonsil is not among the list under 38 C.F.R. § 3.309(e). Where a presumption does not exist, VA is to consider whether service connection is warranted on a non-presumptive basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In that respect, and although there is no indication of squamous cell carcinoma of the right tonsil in the Veteran's service treatment records (STRs), in a February 1968 claim, the Veteran reported having throat symptoms since approximately November 1967. In addition, March 1968 VA treatment records reflect that medication was prescribed for symptoms including in the throat. Additionally, an April 1968 VA examiner reported that the Veteran's tonsils were ragged and granular. Further, and although the April 1968 VA ear, nose, and throat examination report indicates rhinitis, the examiner reported that the Veteran's tonsils were mildly enlarged and cryptic, noting no history of tonsillitis. Moreover, in April 2010, the Veteran was diagnosed with squamous cell carcinoma of the right tonsil and treatment included radiation. See August 2020 C&P Exam. Furthermore, in December 2013 and again in November 2015, the Veteran's oncologist stated there was a certain likelihood that the Veteran's squamous cell carcinoma of the right tonsil is related to Agent Orange exposure during service, noting that although there are no pathognomonic signs to conclusively demonstrate such, other cancers of the aero-digestive tract are known to be associated with Agent Orange exposure. See August 2020 C&P Exam. There is no opinion to the contrary. (Continued on the next page) Further, and although the August 2020 VA examination report notes that the Veteran's cancer of the right tonsil was in remission, in addition to Veteran's competent and credible report of chronic dry mouth since radiation of the right tonsil, see July 2020 Board hearing transcript, the VA examiner stated that the Veteran developed strictures in the throat causing dysphagia as result of the radiation treatment for the squamous cell carcinoma of the right tonsil. In sum, the Veteran was exposed to herbicide agents as a result of his nautical service in the offshore eligible waters defined in the BWN Act, and the evidence supports a relationship between the Veteran's right tonsil squamous cell carcinoma and presumed herbicide exposure, particularly when resolving all reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection for residuals of squamous cell carcinoma of the right tonsil is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.