Citation Nr: 22014401 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-41 906 DATE: March 12, 2022 ORDER Entitlement to service connection for squamous cell carcinoma of unknown primary is granted. REMANDED Entitlement to service connection for a dental condition due to radiation of the neck and jaw is remanded. FINDING OF FACT The evidence is in approximate balance as to whether the Veteran's squamous cell carcinoma of unknown primary is due to Agent Orange exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of unknown primary have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a hearing before the Board. He withdrew his hearing request in writing. Accordingly, the hearing request is withdrawn. This matter was previously remanded for additional development in February 2020 and August 2021. Service Connection Entitlement to service connection for squamous cell carcinoma The Veteran seeks service connection for cancer of the lymph nodes of his neck, which he contends was caused by his exposure to Agent Orange in service. The Veteran also contends that he was exposed to petroleum vapors and liquids, aircraft fuel, and cleaning supplies. Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to an herbicide agent. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). See also Procopio v. Wilkie, 913 F.3d. at 1380-81 (2019) (those who served in the 12-nautical-mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure). If there is no official documentation of service at a location that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure is thus a matter of fact to be determined by the Board. In a May 2020 statement, the Veteran indicated that he cleaned aviation fuel tanks. He asserted that exposure to algae and mold in service contributed to squamous cell carcinoma. In May 2020, the AOJ determined that the Veteran was exposed to Agent Orange based upon service in eligible offshore waters as defined in the Blue Way Navy Vietnam Veterans Act of 2019. Private treatment records dated in November 1994 reflect that the Veteran was diagnosed with unknown primary of the head and neck and underwent left neck dissection. A December 1994 treatment record noted a two-month history of left neck mass positive for squamous cell carcinoma. The Veteran had a VA examination in March 1995. The examiner opined that, "We cannot exclude a lung malignancy as the primary etiology; however, that is only speculation." The Veteran was afforded a VA examination in February 2021. The examiner noted that the Veteran was diagnosed with squamous cell carcinoma that involved the lymph nodes, of unknown origin, with post-surgical radiation. The examiner opined that due to the Veteran's exposure to herbicides and possible Agent Orange while serving in Vietnam, his cancer was caused by his exposures in service. The examiner was unable to determine the initial cancer site, indicating that this needed to be done by an oncologist. In August 2021, the case was remanded to obtain a medical opinion from an oncologist to determine the primary site of the Veteran's cancer. In November 2021, an oncologist reviewed the claims file and provide a medical opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that, based upon the records, it is impossible to determine the primary type and origin site of the Veteran's diagnosed cancer. The examiner further stated that the unknown primary epidermoid carcinoma is unlikely related to Agent Orange exposure. The examiner cited a study of New Zealand veterans who served in Vietnam between 1964 and 1972. The examiner noted that, with regard to head and neck cancer, there was a modestly increased risk in the group, although the examiner found that it was not a statistically significant one. On review, the Board finds that the evidence is in approximate balance as to whether squamous cell carcinoma of unknown primary is related to the Veteran's active service. The Board resolves reasonable doubt in the Veteran's favor. Accordingly, service connection is granted for squamous cell carcinoma of unknown primary. REASONS FOR REMAND Entitlement to service connection for a dental condition due to radiation of the neck and jaw is remanded. The Veteran seeks service connection for a dental condition secondary to radiation treatment. In a November 2014 statement, the Veteran indicated that radiation to his neck and jaw caused dental and jaw deterioration. He noted that he required reconstructive dental surgeries. VA treatment records dated in October 2014 noted a history of multiple dental extractions and a dental implant. A VA examination is necessary to ascertain the dental conditions that were caused by radiation treatment for squamous cell carcinoma. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed dental disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) The examiner should identify all dental disabilities, and provide an opinion as to whether they are caused by, or aggravated by, the Veteran's radiation treatment for squamous cell carcinoma. b) The examiner must consider VA treatment records which show a history of multiple extractions and a dental implant. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.