Citation Nr: 22017275 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-57 290 DATE: March 24, 2022 ORDER Entitlement to service connection for oropharyngeal cancer, including due to herbicide exposure, is denied. FINDING OF FACT The Veteran's oropharyngeal cancer was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the cancer is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for oropharyngeal cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1970 to October 1971, including service in the Republic of Vietnam. This appeal arises from June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran requested a videoconference hearing before a Veterans Law Judge. In a January 2020 statement the Veteran's accredited attorney withdrew the hearing request. This matter was previously before the Board in March 2020 where it was remanded. The Board finds substantial compliance with the March 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Therefore, the Board addresses the merits of this claim in this decision. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1113; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, for chronic diseases as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for oropharyngeal cancer, including due to herbicide exposure The Veteran contends his oropharyngeal squamous cell carcinoma (oropharyngeal cancer) is due to his exposure to herbicides, including Agent Orange, during his active-duty service in the Republic of Vietnam. The persuasive evidence of record is against granting service connection because there is no medical nexus between the Veteran's oropharyngeal cancer and his active-duty service. The Board finds that the evidence of record establishes a diagnosis of oropharyngeal cancer in March 2016. This satisfies the element of a currently diagnosed disability for service-connection. The Board concedes presumed herbicide exposure based on service records indicating service in the Republic of Vietnam in 1970 to 1971. See DD-214; 38 C.F.R. § 3.307(a)(6)(iii). This satisfies the in-service element of service connection. The Board notes that oropharyngeal cancer is not identified as a presumptive disease associated with certain herbicide exposures as defined by 38 C.F.R. § 3.309(e). The Board notes that the Veteran's cancer was diagnosed in March 2016, well beyond any presumptive period listed in 38 C.F.R. § 3.307(a) for diseases enumerated in 38 C.F.R. § 3.309, including malignant cancers. Therefore, a medical nexus opinion is necessary to establish service connection The Board notes two medical opinions of record, a March 2020 VA opinion and an April 2016 VA opinion. The April 2016 VA opinion was found inadequate by a March 2020 Board decision. As such, only the March 2020 VA opinion is addressed. The March 2020 examiner provided a negative nexus opinion, that the Veteran's oropharyngeal cancer is less likely than not related to the Veteran's service, including due to herbicide exposure. The examiner found that the Veteran's oropharyngeal cancer to be more likely than not related to the Veteran's tobacco and alcohol abuse. The examiner cited to American Cancer Society publications that identified that the combination of alcohol and tobacco use is well known for increasing risks and leading to the type of cancer the Veteran is diagnosed with. The examiner reviewed the specific methods the combination of alcohol and tobacco abuse can damage the cells lining the throat, increasing the risk to changes in DNA leading to oropharyngeal cancer. The examiner identified numerous medical records, including ear, nose, and throat (ENT) specialists, oncologists, radiation therapists, emphasizing the Veterans significant alcohol and tobacco abuse. For example, the examiner cited a November 2014 ENT clinic note indicating that the Veteran was a 64-year-old gentleman who presented with a several month history of intermittent hoarseness. The record identified a long smoking history of 1-pack-per-day for at least 47 years. It further described a history of heavy prior ethanol (alcohol) abuse, stopping in May 2014. No cancer found on examination then, but a precursor of cancer called leukoplakia was found. When Veteran presented to ENT clinic in March 2016 with a new history of left-sided neck/throat pain he was still smoking a pack a day. The Board notes that medical records as recent as February 2020 indicated that the Veteran continued to smoke at a rate of approximately one pack of cigarettes over three days. The examiner further explained that the most recent (2018) National Academy of Sciences (NAS) report on Agent Orange concluded there is inadequate or insufficient evidence to determine any association between Agent Orange exposure and oropharyngeal cancers. Although the American Cancer Society, U.S. National Toxicology Program, and International Agency for Research of Cancer have classified one of the chemicals in Agent Orange (dioxin) as a known human carcinogen, the examiner stated these organizations have not linked Agent Orange exposure to oropharyngeal cancers. The examiner added that NAS and American Cancer Society have both determined tobacco and alcohol use are well established risk factors that contribute synergistically to the incidence of oropharyngeal cancers by damaging the cells that line the inside of the mouth and throat. The examiner opined that, based on a review of all available evidence, the Veteran's oropharyngeal squamous cell carcinoma is less likely than not (less than 50 percent chance) related to or the result of presumed exposure to herbicides (Agent Orange) during his active-duty service in Vietnam. The examiner opined that the current evidence makes it more likely that the Veteran's oropharyngeal cancer is related to, or result of, the Veteran's decades long history of significant tobacco and alcohol abuse. Here, the March 2020 medical opinion of record constitutes probative evidence weighing against a link between the Veteran's oropharyngeal cancer and his military service, including exposure to Agent Orange herbicide. The opinion represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. Notably, the Veteran has not provided any competent medical evidence or opinion to the contrary, or identified evidence that diminishes the probative value of the VA opinions against the claim. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board finds that although the Veteran contends that his oropharyngeal cancer is due to service, including exposure to Agent Orange herbicide, he is not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, the issue of whether a cancer diagnosed in 2016 is related to service or service exposure to herbicide agents in early 1970s falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for oropharyngeal cancer. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationales provided by the examiners. The Board notes that the probative evidence of record indicates that the Veteran's oropharyngeal cancer was at the earliest, identified with precancerous leukoplakia in May 2014, over 40 years after the Veteran's separation from service. There are no record of diagnosis or complaints attributable to the Veteran's cancer in service. There are no complaints of any symptoms attributable to the Veteran's cancer in the intervening years, much less within a year of separation. As such, there is no continuity of symptomatology from service until present. Further, as discussed above, the Veteran's significant alcohol and tobacco abuse are identified as an intercurrent cause for the Veteran's oropharyngeal cancer. Based on the above, the Board concludes that the evidence persuasively favors against service connection for oropharyngeal squamous cell carcinoma. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Veteran's claim must be denied. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.