Citation Nr: 22016708 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-34 861 DATE: March 23, 2022 ORDER Entitlement to service connection for right tonsil squamous cell carcinoma, claimed as tonsil cancer, is denied. FINDING OF FACT The Veteran's right tonsil squamous cell carcinoma is not etiologically related to an in-service injury or disease and is neither a chronic disease nor a listed presumptive disease from exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for right tonsil squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from September 1966 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is in the record. Entitlement to service connection for right tonsil squamous cell carcinoma is denied. The Veteran contends that he has right tonsil squamous cell carcinoma that was caused by his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 service. 39 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For veterans exposed to an herbicide agent during active service, the diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed under 38 C.F.R. § 3.309(e) include respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). However, cancer of the tonsil is not included in the list of diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e). Therefore, the Veteran may not be granted service connection for his right tonsil squamous cell carcinoma on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) as due to in-service exposure to herbicide agents. Notwithstanding the foregoing, service connection may still be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Veteran may still establish service connection through a showing that his right tonsil squamous cell carcinoma had its onset during his active service or was actually caused by his presumed in-service exposure to herbicide agents. The Board notes that the Veteran was not afforded a VA examination for his service connection claim for right tonsil squamous cell carcinoma. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159 (c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board finds that the Veteran has not submitted sufficient evidence to indicate that he has right tonsil squamous cell carcinoma related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the claims for service connection for right tonsil squamous cell carcinoma is required. Turning to the evidence, a service personnel record indicates the Veteran served in the Republic of Vietnam from September 1967 to September 1968. A review of the Veteran's service medical records does not reflect any complaints, findings, or treatment for any conditions related to right tonsil squamous cell carcinoma. An August 1969 separation report of medical history documented the Veteran's negative response to whether he ever had cancer or ear, nose, or throat trouble. An August 1969 separation medical examination reported that all the Veteran's systems were normal. An August 2017 private medical record reported that the Veteran underwent bilateral tonsillectomy in August 2017, which showed squamous cell carcinoma in the tonsil. It was reported that the Veteran had a 60-pack a year smoking history but quit smoking in 2010. In October 2017, the Veteran submitted prior Board decisions addressing service connection claims for squamous cell carcinoma of the tonsils. As previously described, the Veteran's service treatment records, including his separation physical examination, contain no entries or complaints relating to the tonsils. In addition, the earliest diagnosis of record for the Veteran's right tonsil squamous cell carcinoma was made many decades after the Veteran left active duty service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the Veteran has not asserted that his right tonsil squamous cell carcinoma began in service. Thus, the in-service incurrence of right tonsil squamous cell carcinoma is not shown, and service connection on that basis is not warranted. In this case, the only evidence that the Veteran's right tonsil squamous cell carcinoma may be related to in-service exposure to herbicide agents is the Veteran's own conclusory generalized lay statements. The Veteran has not presented any probative evidence indicating that his right tonsil squamous cell carcinoma was actually caused by his presumed in-service exposure to herbicide agents. The Board acknowledges the prior Board decisions submitted by the Veteran. However, each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants, even those who may appear to be similarly situated. See 38 C.F.R. § 20.1303. Therefore, the Board decisions submitted by the Veteran have no probative value in this case. (Continued on the next page) For the reasons and bases stated above, the Board finds that the Veteran's service connection claim for right tonsil squamous cell carcinoma, claimed as tonsil cancer, must be denied as it does not meet the criteria under any of the relevant theories of entitlement. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the Veteran's service connection claim for right tonsil squamous cell carcinoma is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.