Citation Nr: 21030851 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-00 001A DATE: May 19, 2021 ORDER Service connection for tongue cancer, claimed as due to exposure to herbicide agents during service, is denied. Service connection for bilateral hearing loss, claimed as secondary to tongue cancer chemoradiation, is denied. Service connection for a thyroid disorder, claimed as secondary to tongue cancer chemoradiation, is denied. Service connection for dysphagia, claimed as secondary to tongue cancer chemoradiation, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's tongue cancer is related to presumed exposure to herbicide agents during service. 2. There is no service-connected primary disability of tongue cancer upon which secondary service connection for bilateral hearing loss, a thyroid disorder, or dysphagia may be granted. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for tongue cancer tongue cancer, claimed as due to exposure to herbicide agents during service, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for bilateral hearing loss, claimed as secondary to tongue cancer chemoradiation, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for an award of service connection for a thyroid disability, claimed as secondary to tongue cancer chemoradiation, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for an award of service connection for dysphagia, claimed as secondary to tongue cancer chemoradiation, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1968, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified during a Board videoconference hearing before a Veterans Law Judge who is no longer employed by the Board; a transcript of that hearing has been associated with the record. The Veteran was offered an opportunity for another Board hearing in March 2021, and his April 2021 response indicated he did not wish for another hearing. The matters were previously remanded by the Board for additional development in January 2017 and April 2019. SERVICE CONNECTION 1. Service connection for tongue cancer is denied. 2. Service connection for bilateral hearing loss is denied. 3. Service connection for a thyroid condition is denied. 4. Service connection for dysphagia is denied. The Veteran contends that he was exposed to herbicide agents while serving in Vietnam. He asserts that in-service exposure to herbicide agents caused him to develop tongue cancer, and the resulting chemoradiation treatment caused bilateral hearing loss, a thyroid condition, and dysphagia. Generally, service connection may be established 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. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). A disability which is proximately due to or the result of a service-connected disease or injury will also be service connected. When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. 38 C.F.R. § 3.310(b). The record shows that the Veteran served in Vietnam during the Vietnam Era; therefore, exposure to herbicide agents during service is presumed. Further, the record also shows a diagnosis of tongue cancer, as well as competent evidence of hearing loss, a thyroid condition, and dysphagia. The Board notes that tongue cancer is not a disease enumerated in 3.309(e). However, the Veteran is not precluded from presenting evidence that a claimed disability is due to or the result of herbicide exposure to alternatively show entitlement to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). After a review of all the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's tongue cancer is related to presumed exposure to herbicide agents during service. The Veteran's treatment records show the he was not diagnosed with tongue cancer until March 2009, decades after his separation from service. Medical treatment records at that time indicate that the Veteran's tumor was attributed to human papillomavirus (HPV). The record contains conflicting medical opinions regarding whether the Veteran's tongue cancer is at least as likely as not related to presumed exposure to herbicide agents during service. In a January 2017 statement, private physician Dr. R.C. opined that the Veteran's tongue cancer was caused by Agent Orange exposure during service. Dr. R.C. provided this opinion based on the site of the cancer and the Veteran's exposure to Agent Orange without other likely contributors. This opinion is, however, less probative than the negative nexus opinions discussed below. The opinion appears to be based on inaccurate information, which is inconsistent with the March 2009 medical records noting that the Veteran's tongue cancer is HPV-related. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, Dr. R.C. did not otherwise provide an adequate rationale for the opinion given. See Jones v. Shinseki, 23 Vet. App. 382 (2010). A May 2018 VA examiner opined that the Veteran's tongue cancer was less likely than not related to service. It was reasoned that immunohistochemistry stains revealed the tumor to be positive for HPV16. The examiner further explained that because the Veteran is not a smoker or heavy drinker, the most likely cause of his tongue cancer was HPV infection. In April 2019, the Board remanded for an addendum opinion because the May 2018 examiner did not address the January 2017 positive nexus statement. An addendum opinion was obtained in December 2019. The examiner opined that the Veteran's tongue cancer was not related to service. The examiner referenced the March 2009 report attributing the disability to HPV. Because the December 2019 examiner still did not address the January 2017 positive nexus opinion, another addendum opinion was obtained in September 2020 from a different physician. The September 2020 VA examiner opined that the Veteran's tongue cancer was less likely than not due to in-service herbicide exposure. The September 2020 examiner noted that he reviewed the record, including the 2017 positive opinion, and that he agreed with the provider of the December 2019 opinion. The September 2020 examiner noted that the January 2017 positive nexus did not seem to consider the pathology findings from 2009 that attribute the Veteran's tongue cancer to HPV. The examiner September 2020 further noted that the January 2017 positive nexus did not provide medical evidence or research to support his conclusion. The September 2020 examiner then referenced medical literature that support a link between HPV and the Veteran's lung cancer. A second addendum VA opinion obtained the next day further elaborated that the record showed no evidence that would indicate the Veteran contracted HPV in service, and that it would be nearly impossible to speculate when he contracted that virus due to how common the virus is. The Board finds that, taken together, the May 2018, December 2019, and September 2020 VA negative nexus opinions are highly probative, because they are based on an accurate medical history and provide thorough explanations that contain clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Consequently, the Board gives more probative weight to the May 2018, December 2019, and September 2020 VA examiners' opinions. The Veteran believes that his tongue cancer is related to presumed exposure to herbicide agents during service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathology of squamous cancer of the tongue, interpretation of complicated diagnostic medical testing, and the relationship between the development of tongue cancer and HPV versus exposure to herbicide agents decades earlier. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2018, December 2019, and September 2020 VA examiners' opinions. Based in the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran's tongue cancer is related to presumed exposure to herbicide agents during service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, as stated above, the Veteran asserts that his bilateral hearing loss, a thyroid disorder, or dysphagia were caused by his tongue cancer and resulting chemoradiation treatment. The Veteran has not contended, nor does the record show, that any of the above-referenced claimed disabilities had their onset during service. The Veteran did not attribute his other claimed disabilities to any cause other than his tongue cancer and resulting chemoradiation treatment. As discussed in this decision, the Board has denied service connection for tongue cancer; therefore, the claims for service connection for bilateral hearing loss, a thyroid disorder, or dysphagia must be denied because there is no primary disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310(a); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.