Citation Nr: 22014591 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-29 034A DATE: March 14, 2022 ORDER Entitlement to service connection for squamous cell carcinoma of the tonsil, claimed as oropharynx cancer, is remanded. REASONS FOR REMAND The Veteran had active service from December 1967 to December 1971 and from July 1981 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran appeared at a hearing before the undersigned. A transcript of that proceeding is associated with the record. In a May 2020 decision, the Board denied the Veteran's claim for service connection for squamous carcinoma of the tonsil. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an October 2021 Memorandum Decision, the Court vacated and remanded the Board's decision, finding that Board credited the VA examiner's negative linkage opinions without addressing the VA examiner's improperly high standard of proof when assessing the likelihood that the Veteran's tonsillar squamous cell carcinoma was caused by herbicide exposure in service. Thus, the Court found that remand was warranted for the Board to reassess the conflicting linkage evidence of record and to determine whether the benefit of the doubt rule is for application on that issue and to consider and discuss whether a new medical opinion is necessary to decide the claim. The matter is now again before the Board for action consistent with the terms of the Memorandum Decision. Entitlement to service connection for squamous carcinoma of the tonsil, claimed as oropharynx cancer, is remanded. The Veteran contends that he developed squamous cell carcinoma of the tonsils as a result of herbicide exposure in service. Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(iii). Here, the Veteran's military personnel records reflect that he served in Republic of Vietnam during the requisite time period. Thus, the Veteran is presumed to have been exposed to herbicide agents, such as Agent Orange. Certain listed medical conditions, including respiratory cancers, may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). However, squamous cell carcinoma of the tonsils is not one of the respiratory cancers that the National Academy of Science has found to be epidemiologically linked to herbicide exposure, and so it not subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Nevertheless, notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes squamous cell carcinoma of the tonsil, claimed as oropharynx cancer, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Medical records in August 2010 show that a biopsy was positive for squamous cell carcinoma for an enlarged right tonsil and the Veteran underwent a right radial neck dissection, and right and left radical tonsillectomy. In a private opinion in February 2014, Dr. M.B.G., who treated the Veteran since August 2010 for cancer, explained that the Veteran's cancer involved an area of the upper airway connected to the larynx. Dr. M.B.G. noted that the Veteran was exposed to Agent Orange in Vietnam and opined that Agent Orange is known to cause upper airway cancers, including larynx cancer. Thus, he concluded that given the close proximity of the tumor to the larynx, it is likely that the Veteran's cancer is Agent Orange related. The Veteran submitted a note from Dr. M.B. G. that his throat cancer is an upper respiratory cancer. In a private opinion in May 2016, Dr. M.B.G. noted that the Veteran was six years status post radical tonsillectomy, neck dissection, and radiation therapy for oropharynx cancer. He stated that they believe that this was caused from Agent Orange exposure and toxicity during his time in Vietnam. In a November 2019 email correspondence, Dr. M.B.G., in response to the Veteran's question of whether his squamous cell carcinoma of the tonsil was a soft tissue sarcoma replied that they were different, noting that sarcomas rarely occur in tonsils, and he had squamous cell carcinoma. He reiterated that if there is evidence for Agent Orange causing squamous cell carcinoma of the lung then there is no reason to think that it would not cause squamous cell carcinoma of the tonsil. In an August 2019 VA opinion, Dr. Y.F.L. opined that the Veteran's squamous cell carcinoma of the tonsil was less likely than not incurred in or caused by service. In the rationale, Dr. Y.F.L. explained that squamous cell carcinoma is a respiratory cancer in that the tonsils are part of the aerodigestive tract and tonsillar disease could cause obstruction to breathing, however the pathophysiology of tonsil carcinoma and lung carcinoma are different, so considering tonsil squamous cell carcinoma as a respiratory cancer is simply a matter of semantics. Dr. Y.F.L. determined that it is more likely than not that the Veteran's squamous cell carcinoma of the tonsil was caused by smoking than by exposure to Agent Orange or other service related activity. The VA examiner explained that smoking as a risk factor for tonsil cancer is well-established and it is one of the main risk factors for tonsil cancer. The examiner further explained, citing to medical literature, that there is no definitive evidence that Agent Orange exposure is a risk factor for tonsil cancer. Thus, Dr. Y.F.L concluded that there is no reason to believe that anything other than smoking was the main reason for the Veteran's tonsil cancer. In a September 2019 opinion, Dr. Y.F.L. disagreed with Dr. M.B.G.'s opinion that Agent Orange was the cause of the Veteran's oropharyngeal cancer. Dr. Y.F.L. noted that smoking is a well-established risk factor for tonsil cancer while Agent Orange may be a risk factor, but it is not well-established. Dr. Y.F.L. referenced medical literature that shows that for tonsil cancer, there is no statistically significant increase in risk with Agent Orange exposure. The VA examiner noted that this is not to say that Agent Orange definitively did not contribute to the Veteran's tonsil cancer as cancer can be caused by multiple factors, which can work synergistically to cause malignancy. However, Dr. Y.F.L concluded that smoking is a much greater risk factor for the development of tonsil cancer than Agent Orange, especially given the Veteran's 45 pack year history. Considering the private opinions relating the Veteran's squamous cell carcinoma of the tonsil to his exposure to Agent Orange during service and concluding that if there is evidence for Agent Orange causing squamous cell carcinoma of the lung then there is no reason to think that it would not cause squamous cell carcinoma of the tonsil, the Board finds that these opinions are inadequate for purposes of deciding the Veteran's claim on appeal because the opinions lack any supporting rationale. Regarding, the VA examiner's opinions, the Board notes that the Court's Memorandum Decision indicates that the VA examiner employed an improperly high standard of proof when assessing the likelihood that the Veteran's tonsillar squamous carcinoma of the tonsil was caused by herbicide exposure in service. In this regard, in his August 2019 opinion, the examiner opined against linkage because there was "no definitive evidence that [A]gent [O]range exposure is a risk factor for tonsil cancer." He offered a similar rationale for his September 2019 addendum opinion, reasoning that Agent Orange was "not well-established" as a risk factor for tonsil cancer. Furthermore, the VA examiner acknowledged that Agent Orange "may be a risk factor" for the Veteran's cancer and suggested that exposure to herbicides may have played a role in development of that condition, without reconciling these statements in the finding that it was more likely that his squamous carcinoma of the tonsil was due to his smoking history. Therefore, given the deficiencies in the VA opinions and the private opinions, the Board finds that another medical opinion is necessary. The matter is remanded for the following action: Obtain an addendum opinion regarding the nature and etiology of the Veteran's squamous cell carcinoma of the tonsil. If necessary, the Veteran should be scheduled for an appropriate VA examination to complete the requested opinions. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. (a.) The examiner shoulder opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that that the Veteran's squamous cell carcinoma of the tonsil is etiologically related to military service, to include his exposure to herbicide agents. (b.) In rendering this opinion, the examiner is asked to specifically consider the February 2014 and May 2016 private medical opinions from the Veteran's treating provider. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). An opinion that is based on the mere fact that the Veteran's disorder is not on the list of presumptive diseases for exposure to herbicide agents will be considered deficient. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.