Citation Nr: 21042040 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-38 151 DATE: July 11, 2021 ORDER Service connection for high grade mucoepidermoid carcinoma or the right deep lobe of the parotid gland is granted. Service connection for pulmonary metastasis post left lower lobe wedge resection post chemotherapy, claimed as lung cancer is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his high grade mucoepidermoid carcinoma of the right deep lobe of the parotid gland is at least as likely as not related to exposure to herbicide agents in the Republic of Vietnam. 2. The Veteran's pulmonary metastasis post left lower lobe wedge resection post chemotherapy is proximately due to his service-connected high grade mucoepidermoid carcinoma or the right deep lobe of the parotid gland. CONCLUSIONS OF LAW 1. The criteria for service connection for high grade mucoepidermoid carcinoma or the right deep lobe of the parotid gland are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for pulmonary metastasis post left lower lobe wedge resection post chemotherapy, claimed as lung cancer, as secondary to service-connected high grade mucoepidermoid carcinoma or the right deep lobe of the parotid gland, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from July 1966 to July 1968 including service in the Republic of Vietnam. He was awarded the Bronze Star Medal. He died in September 2016. The appellant claims recognition as his surviving spouse and has been accepted as a substitute claimant. These matters come before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in July 2015 and a Statement of the Case (SOC) was issued in July 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in August 2016. The appellant, her daughter, and her representative appeared in a May 2021 hearing. A transcript of that hearing has been associated with the record. In response to a Nehmer notification, in June 2021, the appellant submitted medical treatment records that were not previously considered by the Agency of Original Jurisdiction (AOJ) and did not waive AOJ review of this evidence. The evidence is only marginally relevant to the claims on appeal as it does not contain any new information pertinent to the case. Regardless of its pertinence, in light of the favorable decision herein, remand to the RO for consideration of this evidence is unnecessary. 38 C.F.R. § 20.1305(c). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service records document his service in the Republic of Vietnam during an applicable time period. Therefore, he is presumed to have been exposed to herbicides, absent evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Diseases listed at 38 C.F.R. § 3.309(e) warrant service connection on a presumptive basis due to exposure to herbicides. See also 38 U.S.C. § 1116 and 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). The Federal Circuit has held that even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). See also 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). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for high grade mucoepidermoid carcinoma of the right deep lobe of the parotid gland The appellant contends that the Veteran's high grade mucoepidermoid carcinoma of the right deep lobe of the parotid gland ("parotid gland carcinoma") was caused by his exposure to herbicide agents during his service in the Republic of Vietnam. As the Veteran served in the Republic of Vietnam, exposure to herbicide agents is presumed. The evidence is in equipoise as to whether there is a causal link between the Veteran's parotid gland carcinoma and his active service, to include exposure to herbicide agents in the Republic of Vietnam. Medical treatment records from March 2004 show the Veteran reporting that he had quit smoking in 1991. In June 2014, a private medical practitioner, Dr. P.O., who treated the Veteran stated that exposure to herbicide agents "might be etiologic in [the Veteran's] cancers ... including [his] mucoepidermoid carcinoma." In July 2014, another private medical practitioner, Dr. C.B., opined that the Veteran's malignant tumor of the deep parotid lobe "falls under the category of 'conditions recognized as service connected for Vietnam veterans based upon exposure to Agent Orange or other herbicides." Dr. C.B. based her opinion on "recent determinations by the Department of Veterans Affairs" that "established a service connection of head and neck cancers, including salivary gland cancers and metastases of such cancers." The Veteran was afforded a VA examination in October 2014. He was diagnosed as having high-grade mucoepidermoid carcinoma of right deep lobe of parotid gland, status post-surgical excision to right neck area with post-operative radiation therapy. After examining the Veteran, the VA nurse practitioner opined that the Veteran's parotid gland carcinoma was at least as likely as not due to his exposure to herbicide agents during service. As rationale, the VA examiner cited a prior Board decision where another medical practitioner explained that the "mutagenic properties of Agent Orange could cause such salivary cancer." Other than quoting the prior Board decision and the prior medical opinion, the examiner did not provide a rationale for her medical opinion nor explain how the prior medical opinion related to the Veteran's specific case. In January 2015, another VA examiner, a physician, opined that the Veteran's parotid gland carcinoma was less likely as not caused by the Veteran's presumed exposure to herbicide agents. The examiner began by stating that salivary gland tumors were rare and cited "recent UpToDate medical search" to explain that exposure to herbicide agents was "not an etiological factor for parotid cancer." Possible causes for carotid cancer were radiation exposure, smoking, viral infections, and "environmental factors and industrial exposure to factors such as rubber manufacturing, hairdressers, beauty shops, and nickel compounds." With respect to smoking, the cited medical literature specifically named "Warthin tumor" as having a strong association with smoking "in contrast to other salivary gland tumors for which there is no clear relationship." There is no medical evidence of record that the Veteran's parotid glad carcinoma was a Warthin tumor. The examiner did not state that the list of factors was exhaustive nor that herbicide agents were specifically excluded as a factor. The examiner also did not opine on the Veteran's specific case, only that parotid gland carcinoma was less likely than not caused by exposure to herbicide agents. In May 2021, the appellant submitted an abstract of a medical article published in December 2019 that found that there was an increased risk of head and neck cancers in Vietnam era veterans exposed to herbicide agents. The Board reviewed the entire study. The authors evaluated many different forms of upper aerodigestive tract cancers but noted that oral cavity tumors had no significant association with Agent Orange exposure. The authors found that "Salivary gland tumors were not increased in Agent Orange-exposed veterans, in contrast to the Korean Veterans Health Study findings." The cited Korean Veterans Health Study finding was published in August 2014. As discussed above, the medical opinion is at equipoise, with expert practitioners and medical literature suggesting that the Veteran's parotid gland carcinoma may or may not be related to exposure to herbicide agents. None of the medical opinion of record can be assigned greater probative weight over others as they are similarly flawed. The June 2014 private practitioner did not opine whether the Veteran's parotid gland carcinoma was "at least as likely as not" related to service; the July 2014 private practitioner cited "recent determinations" that were not specific to the Veteran's case; the October 2014 VA examiner based her opinion not on medical literature or the Veteran's specific case but on a prior Board decision specific to a different Veteran; and the January 2015 VA examiner based his opinion on medical research without applying it to the Veteran's case. Even the medical literature submitted by the appellant cites a study that contradicts its findings. Given these contradictory opinions and medical literature, by way of both private and VA opinions, the Board finds that a remand would likely prove futile. The Board also observes that, while the Veteran was a smoker for over two decades, medical literature cited by the January 2015 VA examiner specifically states that smoking does not have a clear relationship with the Veteran's parotid gland carcinoma as the Veteran was not diagnosed as having Warthin tumor, the only tumor where there was a clear relationship. Thus, the evidence is at least in equipoise as to whether the Veteran's parotid gland carcinoma was caused by exposure to herbicide agents in service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Reasonable doubt will be resolved in the Veteran's favor and thus service connection for parotid gland carcinoma is granted. See 38 U.S.C. § 5107. 2. Service connection for pulmonary metastasis post left lower lobe wedge resection post chemotherapy, claimed as lung cancer In light of the grant of service-connection for parotid gland carcinoma above, the claim of service connection for pulmonary metastasis post left lower lobe wedge resection post chemotherapy, claimed as lung cancer ("lung cancer"), is granted as the Veteran's lung cancer had metastasized from his parotid gland cancer. Specifically, private treatment records from January 2004 show that the Veteran's parotid gland cancer had metastasized to his lung. For the foregoing reasons, service connection for pulmonary metastasis post left lower lobe wedge resection post chemotherapy, claimed as lung cancer, as secondary to service-connected parotid gland carcinoma, is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.