Citation Nr: 21041551 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-24 283 DATE: July 9, 2021 ORDER Service connection for squamous cell carcinoma of the nasopharynx is granted. Service connection for adenoid cystic carcinoma residuals, status-post excision, is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's squamous cell carcinoma of the nasopharynx is as likely as not related to in-service exposure to tactical herbicide, including Agent Orange. 2. The Veteran's adenoid cystic carcinoma residuals, status-post excision is as likely as not related to in-service exposure to tactical herbicide, including Agent Orange. 3. The Veteran's bilateral hearing loss disability cannot be satisfactorily disassociated from in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma of the nasopharynx have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for adenoid cystic carcinoma residuals, status-post excision have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to August 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions dated May 2013, in which the RO denied entitlement to service connection for adenoid cystic carcinoma and for bilateral hearing loss; and March 2017, in which the RO denied entitlement to service connection for squamous cell carcinoma of the nasopharynx. The Veteran timely appealed each rating decision. In a March 2018 decision, the Board remanded the service connection claims for adenoid cystic carcinoma and for bilateral hearing loss to the RO for further development and adjudicative action. In a In a June 2019 decision, the Board remanded the service connection claim for squamous cell carcinoma of the nasopharynx to the RO for further development and adjudicative action. Since then, the RO has completed necessary development concerning each claim, and as so, the claims may now be adjudicated in a single decision and as set forth below. Notably, and as set forth below, the present Board decision is considered a full grant of the benefits sought on appeal by the Veteran, and as so, any further remand for further development would unnecessarily delay the Veteran's receipt of the benefits to which he is (now) entitled. 38 C.F.R. § 20.1305(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for squamous cell carcinoma of the nasopharynx The Veteran contends that he has squamous cell carcinoma of the nasopharynx that is related to service; specifically, he asserts that the disability is related to in-service exposure to the tactical herbicide Agent Orange. See, e.g. May 2017 private representative's facsimile (containing a May 2017 opinion from Dr. J.M., M.D.). The Veteran has a current diagnosis of squamous cell carcinoma of the nasopharynx. See, e.g. May 2017 letter from Dr. J.M. The Veteran served in Vietnam during the Vietnam War Era, and is thus entitled to a presumption of Agent Orange exposure. 38 C.F.R. §§ 3.307(a)(6)(iii)-(v). Squamous cell carcinoma of the nasopharynx is not within the list of diseases for which a presumption of service connection arises when a Veteran is shown to have been exposed to tactical herbicide, including Agent Orange, in service; nonetheless, a claimant is not precluded from establishing service connection on a direct basis. In other words, even if a disease is not on the list of diseases presumed service-connected in veterans exposed to Agent Orange, the Veteran may nonetheless establish entitlement to service connection by showing his squamous cell carcinoma of the nasopharynx was actually caused by his Agent Orange exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Thus, the dispositive issue is whether a nexus exists between the current squamous cell carcinoma of the nasopharynx Service Treatment Records (STRs) are silent for any indication of squamous cell carcinoma of the nasopharynx. The record contains several medical opinions, and considerable medical literature, concerning whether the Veteran's squamous cell carcinoma of the nasopharynx is related to his in-service Agent Orange exposure. The Veteran submitted medical literature, received in February 2017, discussing "the association between exposure to Agent Orange and cancer incidence in [] Vietnam veterans." The study concluded that The results of the current large-scale cohort study indicate that exposure to Agent Orange/TCDD-related chemicals several decades earlier may increase the risk of all cancer combined as well as various specific cancers among Korean veterans of the Vietnam War. An elevated risk of mouth cancers, salivary gland cancer, and digestive cancers such as cancers of the stomach, small intestine, and liver, which were not found to be clearly associated with exposure to Agent Orange/TCDD in previous cohort studies primarily based on western populations, is worth noting and requires further research. A November 2015 private primary care consult note shows a recent diagnosis of nasopharyngeal carcinoma; and, that the Veteran smoked 2.5 packs of cigarettes per day for 40 yearsa 100 pack year history. A February 2017 VA General Medical Disability Benefits Questionnaire (DBQ) shows diagnosis of squamous cell cancer of nasopharyngeal, status-post radiation, chemotherapy. The examiner did not address whether the cancer was related to Agent Orange exposure. In May 2017, Dr. J.M. opined that the Veteran's squamous cell carcinoma of the nasopharynx was as likely as not due to the in-service Agent Orange exposure. Her opinion was supported by the following rationale: At the time of initial diagnosis, he was approximately thirty-eight (38) years old. More recently he was diagnosed with squamous cell carcinoma of the nasopharynx in 11/15. While the sites of the two forms of cancer are similar the recent diagnosis of nasopharynx squamous cell carcinoma does not appear to be metastatic in nature. I was asked to consider whether he exposure to AO caused or contributed to his current dx of nasopharynx carcinoma and / or prior hx of adenoid cystic carcinoma of the left maxillary sinus (now in remission). I have reviewed operative portions of the Veterans and AO update 2014. I am aware of the IMO 2014 report finding that small numbers of oral, nasal, or pharyngeal cancer cases reported in combination with a general lack of info on the smoking, drinking, and HPB status of study participant, limited the interpretation of the date. While the IOM did consider most recent studies the IOM concluded that there was inadequate or insufficient evidence to determine whether there was an association between COIs and oral, nasal, or pharyngeal cancer. In my opinion the toxicological effects that are indicative of an etiological basis to grant presumptive status for cancers of the trachea and larynx would be similar for areas of the upper aerodigestive tract. Since exposure to AO would mostly occur through the nares and mouth, it is my opinion that cancers of the aerodigestive tract would have a similar range of exposure and hazard risk factor as cancers of the trachea and larynx. I cannot say that the Vet's exposure to AO (TCDD) caused or contributed to his squamous cell carcinoma of the nasopharynx or prior hx of adenoid cystic carcinoma. However, given the body of scientific and medical literature documenting the biological plausibility and co-morbidity between TCDD exposure and these cancers, as well as the presumption for the SC already afforded for cancers of the trachea and larynx, it is at least as likely as not that the Veteran's cancers of the aerodigestive tract are causally related to his AO exposure. A medical article received from the Veteran in May 2017 discusses the carcinogenicity of TCDDa compound found in Agent Orangeas demonstrated by a two-year study involving rats. In June 2020, a private internist, Dr. S.B., opined that the Veteran's squamous cell carcinoma of the nasopharynx was at least as likely as not caused by Agent Orange exposure in-service. Dr. S.B. reviewed the Veteran's medical treatment records, and cited a number of medical references consulted in forming his opinion. Dr. S.B. stated that "the Veteran did not have any risk factors for the development of squamous cell carcinoma." Yet, Dr. S.B. then listed risk factors for the cancer which include "smoking and chewing tobacco." Dr. S.B. provided a thorough discussion of the pathological nature of squamous cell cancers, and noted that "the exact pathogenesis is still unknown." Dr. S.B. noted that squamous cell cancers have "very few risk factors," and found it "easy to extrapolate one common factor, which is a putative carcinogen affecting [the Veteran's] health. [The Veteran's] exposure to Agent Orange can be the only risk factor responsible for causing these diseases." Dr. S.B. further elaborated that the properties of Agent Orange have not been thoroughly studies, although Agent Orange is considered a "putative carcinogen." Then, Dr. S.B. discussed that exposure to Agent Orange would include exposure to Benzene; and, noted extensive literature documentations, reviews and notable diseases linked to Agent Orange by the VA which show the toxic effects of Agent Orange. Overall, studies and clinicians, who treat patients with known exposure to dioxins (Benzene), have proven that dioxin exposure is a contributing factor in the development of cancer. Dr. S.B. discussed how the incidence of the Veteran's squamous cell cancer, as well as adenoid cystic carcinoma, further suggests that exposure to hydrocarbonspecifically Benzeneis the cause of the cancer. Moreover, the chemicals are likely to stay in the body for "a long time," causing the effects to remain dormant for as long as "decades." The Veteran had an in-person VA examination, related to the squamous cell carcinoma, in August 2020. The VA examiner conducted a thorough review of the medical evidence, and noted that "all records are reviewed from DD Form 214" until "Medical Opinion DBQ," concerning adenoid cystic carcinoma, dated August 2019. The examiner opined that the Veteran's X was less likely than not (less than a 50 percent probability) incurred in or caused by service; specifically, [A]mong the known risk factors exposure to herbicide is not included. exactly what causes the gene mutations that lead to nasopharyngeal carcinoma isn't known, though factors, such as the Epstein-Barr virus, that increase the risk of this cancer have been identified. However, it isn't clear why some people with all the risk factors never develop cancer, while others who have no apparent risk factors do. Therefore it is not possible to determine the causal etiology of the veteran's nasopharyngeal carcinoma without resorting to speculation. The Veteran submitted additional medical literature in October 2020, concerning the development of squamous cell carcinoma and Agent Orange exposure. Based on the foregoing, the discussion turns to whether the "nexus" element of the service connection claim is met. The record contains the August 2020 VA examiner's negative nexus opinion; but, also contains the opinions from Dr. J.M. and Dr. S.B. The August 2020 examiner's opinion was based on a thorough review of the Veteran's medical records; considered the pathological nature of the Veteran's unique diagnosis of squamous cell carcinoma; and provided a clearly-worded rationale which indicated that the medical knowledge does not support any sort of connection between Agent Orange exposure and later development of squamous cell carcinoma. For those reasons, the opinion carries significant probative value. On the other hand, Dr. J.M.'s May 2017 opinion was formed following a review of the Veteran's medical records. Dr. J.M.'s detailed discussion of the toxicological nature of Agent Orange reflects that when considering the specific nature of the chemicals of which Agent Orange is composed; and the fact that similar cancers of the trachea and larynx are also presumed to be due to Agent Orange based on the likely exposure to such chemicals through the nose and mouth; cancers such at the Veteran's squamous cell carcinoma may also similarly be so caused. Accordingly, Dr. J.M.'s opinion, while not affirmatively linking the cancer to Agent Orange exposure, clearly suggests the likelihood that the Veteran's cancer would have developed from Agent Orange exposure through the mouth and nose. Lastly, Dr. S.B.'s opinion provides a thorough discussion of why the Veteran's exposure to Benzene, a chemical in Agent Orange, is a significant risk factor in the development of squamous cell carcinoma. Dr. S.B. supports this thesis by discussing how the Veteran's separate development of adenoid cystic sarcoma is further evidence of the role that Agent Orange exposure played in developing squamous cell carcinoma. To the extent that Dr. S.B. indicates that exposure to Benzene is a significant risk factor in the development of squamous cell carcinoma, the opinion carries significant probative value. Additionally, the opinion provides thoroughly-worded language for why the Veteran's general Agent Orange exposure is the greatest risk factor for his development of squamous cell carcinoma. However, this argument is based on the inaccurate factual premise that the Veteran did not smoke tobaccospecifically, Dr. S.B. identified "smoking and chewing tobacco" as a risk factor for developing squamous cell carcinoma; then, indicated that there were no risk factors other than Agent Orange exposure which applied to the Veteran. The Veteran has a 100-year pack history. For that reason, Dr. S.B.'s opinion, to the extent that it attributes the squamous cell carcinoma to Agent Orange exposure on the basis of no other risk factors, carries no probative weight. In light of the foregoing, the record contains an adequate VA examiner's opinion weighing against a finding that the squamous cell carcinoma; and, adequately supported private medical opinions which support a link between Agent Orange exposure and squamous cell carcinoma, generally; and, in the case of Dr. J.M.'s opinion, a properly supported opinion specifically linking the Veteran's squamous cell carcinoma to Agent Orange exposure. The evidence is at least evenly balanced as to whether the squamous cell carcinoma is related to service, and the claim is granted. 2. Entitlement to service connection for adenoid cystic carcinoma residuals, status-post excision The Veteran contends that he has adenoid cystic carcinoma residuals (hereinafter "residuals"), status-post excision that are related to service; specifically, he asserts that (i) the residuals result from an August 1988 resection procedure, and subsequent reconstruction surgeries, necessary to remove an adenoid cystic carcinoma; and, (ii) that the adenoid cystic carcinoma was caused by in-service exposure to the tactical herbicide Agent Orange. See, e.g. NOD dated June 2013. The Veteran has current residuals of an excision procedure performed in August 1987. See, e.g. August 2020 Scars/Disfigurement DBQ. As noted above, Agent Orange exposure has been conceded. See generally, 38 C.F.R. §§ 3.307(a)(6)(iii)-(v). Accordingly, the dispositive issue is whether the adenoid cystic carcinoma, which caused the current residuals, is related to in-service Agent Orange exposure. While adenoid cystic carcinoma is not among the diseases for which presumptive service connection may be granted, service connection may yet be warranted if the record demonstrates that the adenoid cystic carcinoma is related to Agent Orange exposure on a direct. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) STRs are silent for complaints, treatment, or diagnosis of adenoid cystic sarcoma, or residuals, in service. A January 1988 letter form a private physician, Dr. C.O., shows that the Veteran underwent a procedure to remove lesions above the left superior lip and right inferior lip. The lesion about the left superior lip was found to be malignant and required surgical intervention. A November 2015 private cancer care note shows a remote history of adenoid cystic carcinoma of the left salivary gland. Dr. J.M.'s opinion from May 2017, discussed in more detail in the above section, shows that she reviewed medical literature concerning cancer in Veterans with Agent Orange exposure. Dr. J.M. opined that the adenoid cystic carcinoma was as likely as not caused by in-service Agent Orange exposure. Specifically, and as acknowledged above she stated: I am aware of the IMO 2014 report finding that small numbers of oral, nasal, or pharyngeal cancer cases reported in combination with a general lack of info on the smoking, drinking, and HPB status of study participant, limited the interpretation of the date. While the IOM did consider most recent studies the IOM concluded that there was inadequate or insufficient evidence to determine whether there was an association between COIs and oral, nasal, or pharyngeal cancer. In my opinion the toxicological effects that are indicative of an etiological basis to grant presumptive status for cancers of the trachea and larynx would be similar for areas of the upper aerodigestive tract. Since exposure to AO would mostly occur through the nares and mouth, it is my opinion that cancers of the aerodigestive tract would have a similar range of exposure and hazard risk factor as cancers of the trachea and larynx. I cannot say that the Vet's exposure to AO (TCDD) caused or contributed to his squamous cell carcinoma of the nasopharynx or prior hx of adenoid cystic carcinoma. However, given the body of scientific and medical literature documenting the biological plausibility and co-morbidity between TCDD exposure and these cancers, as well as the presumption for the SC already afforded for cancers of the trachea and larynx, it is at least as likely as not that the Veteran's cancers of the aerodigestive tract are causally related to his AO exposure. Simply put, she provided the same rationale concerning whether the adenoid cystic carcinoma is caused by Agent Orange as she did concerning the squamous cell carcinoma of the nasopharynx. In August 2019, a VA examiner opined that the adenoid cystic carcinoma is less likely than not incurred in or caused by service; her supporting rationale was as follows: Adenoid cystic carcinoma (ACC) is a rare form of adenocarcinoma, a type of cancer that begins in glandular tissues. It most commonly arises in the major and minor salivary glands of the head and neck. According to National Center for Advancing Translational Sciences, Genetic and Rare Disease Information Center, the underlying cause of adenoid cystic carcinoma (ACC) is not yet known, but it appears to develop from non-inherited, genetic changes that occur during a person's lifetime. These genetic changes are present only in the cancer cells, not in the cells with the genetic material that is passed on to offspring (the egg and sperm cells). The changes may be caused by exposures in a person's environment. However, no strong environmental risk factors specific to ACC have been identified. Unlike some other cancers of the head and neck, ACC is not linked to tobacco or alcohol use, or infection by the human papilloma virus (HPV). Although it is plausible that the Veteran's adenoid cystic carcinoma (ACC) may be a result of exposure to Agent Orange due to environmental exposure playing a role to its development, it is not proven yet. There is no medical literature that links Adenoid cystic carcinoma (ACC) with Agent Orange. To state that the veteran's Adenoid cystic carcinoma is due to exposure to Agent Orange will result to mere speculation, therefore, it was less likely than not that the Veteran's adenoid cystic carcinoma is a direct result of exposure to herbicide during service. Dr. S.B. also opined that the Veteran's adenoid cystic carcinoma was related to Agent Orange exposure; again, he provided the same opinion concerning the adenoid cystic carcinoma as he did concerning a link between the squamous cell carcinoma of the nasopharynx to Agent Orange. Without reciting the discussion set forth in the section above, Dr. S.B.'s opinion most poignantly discussed the likelihood that exposure to Benzene, a chemical in Agent Orange, is a central risk factor to the development of adenoid cystic carcinoma. The Veteran had another VA Scars/Disfigurement examination in August 2020. The examiner again noted a scar incurred during a procedure to remove the adenoid cystic carcinoma. Based on the foregoing, the weight of the evidence supports finding that the Veteran's adenoid cystic carcinoma is caused by his in-service Agent Orange exposure. First, Dr. J.M. and Dr. S.B. each provided thoroughly-worded opinions which were supported by numerous pieces of medical literature and medical research. Each opinion considered the unique medical history of the Veteran's adenoid cystic carcinoma, and each opinion was conducted following a thorough review of the Veteran's medical records. In light of the evidence-based and clearly worded rationale provided by each examiner, each opinion carries significant probative weight. On the other hand, the August 2019 examiner opined that the adenoid cystic carcinoma was less likely than not caused by Agent Orange exposure. In essence, the August 2019 examiner's opinion was that, although such a link is "plausible," such a link is not supported by medical research/literaturethus, any finding of a link between the two would be pure speculation. Notably, the examiner did not rule out the plausibility of such a link. While the August 2019 examiner concluded that medical research does not support such a link, Dr. J.M. and Dr. S.B. each cited relevant medical evidence on the topic. Moreover, the August 2019 examiner's indication that a link is "plausible" may reasonably be read to concur with the findings of Dr. J.M. and Dr. S.B. Specifically, J.M. and Dr. S.B. each were unable to definitively connect the Agent Orange exposure to the adenoid cystic carcinoma; but, the August 2019 examiner indicated that such a link was "plausible." When resolving all doubt in the Veteran's favor, the evidence is at least evenly balanced as to whether a link exists between the Veteran's in-service Agent Orange exposure and his adenoid cystic carcinoma. In such an instance, the Veteran must be awarded the benefit of the doubt, and as a result, each element of the service connection claim for residuals of adenoid cystic carcinoma, status-post excision is met, and the claim is granted. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has a current bilateral hearing loss disability that is related to in-service hazardous noise exposure, including during an incident in 1967 when he was exposed to a mortar round exploding approximately 10 feet from him, as well as general exposure to artillery fire. The Veteran has a current bilateral hearing loss disability for VA purposes. See, e.g. May 2013 VA Hearing Loss and Tinnitus DBQ, p. 2. Additionally, VA has previously conceded in-service noise exposure. See, e.g. August 2020 Rating decision (conceded noise exposure during active service and granting the claim for service connection for tinnitus). Thus, the dispositive issue is whether the Veteran's bilateral hearing loss disability is related to service, to include in-service noise exposure. Additionally, service connection may be warranted if the bilateral hearing loss is caused by or aggravated by the service-connected tinnitus. Audiograms taken during service, specifically in October 1965 and July 1971, show that hearing tested within normal limits. However, a February 1971 STR shows that the Veteran reported he could not hear from his left ear. At the Veteran's May 2013 VA hearing loss examination, the examiner opined that the Veteran's bilateral hearing loss was less likely than not related to in-service noise exposure, because Despite this loud [mortar explosion approximately 10 feet away from the Veteran,] no acoustic trauma occurred resulting in hearing loss. The claimant also has a significant history of occupational noise exposure after military service. He worked as a marine machinist for approximately ten years after he left the military. The examiner also noted that The Veteran has a diagnosis of clinical hearing loss, and his [] tinnitus is at least as likely as not [] a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The Veteran had another VA Hearing Loss and Tinnitus examination in August 2019. The examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by service, because There is no significant permanent shift in hearing thresholds beyond test variability from entrance (10/12/1965- when converted to ISO-ANSI standards) to separation (7/29/1971), which is objective evidence of no permanent auditory damage on active duty from conceded noise. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure. Turning to whether the third element of the service connection claima "nexus"is met, the record thus contains two opinions. Each examiner opined against a direct link between the hearing loss and service. In support of each opinion, the examiners discussed the in-service audiometric testing results, and discussed the pathology of bilateral hearing lossincluding in the Veteran's unique case. Each opinion is clearly worded, and is based on an accurate factual basis, and is supported by a thoroughly reasoned rationale. Therefore, on the issue of whether the Veteran's bilateral hearing loss is directly related to service, each opinion carries significant probative value. However, the May 2013 examiner, as noted above, also directly linked the Veteran's (now) service-connected tinnitus to his bilateral hearing loss by noting that the two disabilities are "associated." In the August 2020 rating decision, the RO conceded that the Veteran's service-connected tinnitus was caused by the in-service noise exposure to which the Veteran believes his bilateral hearing loss disability is related. In sum, (i) the Veteran's service-connected tinnitus was caused by the conceded in-service noise exposure to which the Veteran attributes his bilateral hearing loss; and (ii) the Veteran's service-connected tinnitus is "associated" with his bilateral hearing loss. Without any probative evidence in the record as would dispute a finding that the Veteran's bilateral hearing loss is associated with his service-connected tinnitus, the two disabilities cannot be satisfactorily disassociated. (Continued on the next page) Thus, with resolution of any doubt in favor of the Veteran, the Veteran's bilateral hearing loss is as likely as not related to in-service noise exposure, and the claim is granted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.