Citation Nr: A25035390 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240416-432817 DATE: April 16, 2025 ORDER Entitlement to service connection for tonsillar/throat cancer (oropharyngeal cancer), to include as due to herbicide exposure, is denied. FINDING OF FACT The most probative evidence fails to demonstrate that the Veteran's throat cancer began during active service or is otherwise related to an in-service injury or disease, including exposure to herbicide agents or TERAs. CONCLUSION OF LAW The criteria for service connection for throat cancer are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1137, 1168(a), 1710(e)(1), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e); Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. 117-168 (2022). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to May 1971. In July 2023, the Veteran submitted a Department of Veterans Affairs (VA) Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of a claim for service connection for throat cancer, which had most recently been addressed in a September 2018 rating decision. In November 2023, a VA Regional Office, an agency of original jurisdiction (AOJ), issued a supplemental claim decision finding that, while evidence submitted was sufficient to reopen the claim, it did not support a change in the previous AOJ decision denying service connection because evidence failed to show diagnosis of a condition for which VA has found a positive association to herbicide exposure, or a link between the Veteran's throat cancer and his military service. As there was an implicit finding that new and relevant evidence was received by the AOJ, this favorable finding is binding on the Board of Veterans' Appeals (Board). 38 C.F.R. § 3.104 (c). In April 2024, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 rating decision on appeal. See 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the November 2023 decision, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Entitlement to service connection for tonsillar/throat cancer (oropharyngeal cancer) The Veteran contends that he developed tonsillar/throat cancer as a result of herbicide exposure while in service; specifically, due to "Agent Orange DMZ Korea." See April 2018 VA Form 21-526EZ, Fully Developed Claim; July 2023 VA Form 20-0995, Supplemental Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The current disability element of a service connection claim is not in dispute. VA examination in November 2023 confirmed the Veteran's diagnosis. The AOJ also favorably found the Veteran has a current disability - tonsillar cancer. See November 2023 Rating Decision. This favorable finding is binding on the Board. 38 C.F.R. § 3.104 (c). As to the in-service incurrence element of a service connection claim, the Veteran's service treatment records do not contain any complaints, treatment, or diagnosis associated with the claimed condition. However, effective January 1, 2020, a Veteran who served between September 1, 1967, and August 31, 1971, in a unit that operated in or near the Korean demilitarized zone (DMZ) is presumed to been exposed to herbicide agents. 38 U.S.C. § 1116B. Here, the Veteran's military personnel records reflect that he had periods of service in Korea during this time period. See DD Form 214. Thus, the Veteran is presumed to have been exposed to herbicide agents, such as Agent Orange. The AOJ also favorably found exposure to herbicide agents is conceded based on the Veteran's service in the Korean DMZ. See November 2023 Rating Decision. This favorable finding is binding on the Board. 38 C.F.R. § 3.104 (c). 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). Cancer of the tonsils, however, is not among the diseases presumptively related to herbicide agent exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). The regulation governing presumptive service connection for respiratory cancers based on Agent Orange exposure is limited to cancers of the lung, bronchus, trachea, and larynx. 38 C.F.R. § 3.309(e). The regulation does not grant presumptive service connection for all respiratory cancers. In this regard, the National Academy of Sciences (NAS) concluded in 2008, 2010, and 2012 that there remains inadequate or insufficient evidence of an association between exposure to herbicides and cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), nasal cavity (including ears and sinuses), pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012,79 Fed. Reg. 20308 (Apr. 11, 2014); Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010,77 Fed. Reg. 47924(Aug. 10, 2012); Health Outcomes Not Associated with Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008,75 Fed. Reg. 81332(Dec. 27, 2010). Nonetheless, service connection may be established on a direct basis, as related to presumed Agent Orange exposure. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). As indicated, the Veteran's service treatment records contain no complaints, treatment, or diagnosis associated with the claimed condition. Post-service treatment records reflect the Veteran was diagnosed with advanced stage squamous cell cancer of the oropharynx following a biopsy in December 2012, more than 40 years after the Veteran's active military service. Clinical notes, while noting the Veteran reported exposure to herbicide agents while in service, do not provide insight into the etiology of the Veteran's throat cancer diagnosis, or provide any nexus opinion(s). The recently passed Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) allows presumptive consideration for multiple conditions, including malignant neoplasms of the head and neck, oropharyngeal cancer, pharyngeal cancer, and squamous cell carcinoma, among others. Entitlement to service connection pursuant to the PACT Act may be considered for active-duty Veterans who have participated in a Toxic Exposure Risk Activities (TERAs), been diagnosed with a qualifying condition, and shown a nexus, or link, exists between the diagnosed condition and the TERA participation. See 38 U.S.C. § 1168; see also Pub. L. No. 117-168, 136 Stat. 1759 (2022). VA TERA Memorandum, issued on November 9, 2023, confirmed the Veteran was exposed to an herbicide agent (Tetrachlorodibenzodioxin (TCDD)) when he served in Korea DMZ. Thus, his participation in a TERA was confirmed. The AOJ also favorably found participation in a TERA is conceded based on the Veteran's duty location. See November 2023 Rating Decision. This favorable finding is binding on the Board. 38 C.F.R. § 3.104 (c). A VA TERA-specific opinion was obtained in November 2023 to address whether the Veteran's throat cancer is causally related to his conceded toxic herbicide exposure. Following an interview with the Veteran and review of the claims file, the examiner determined that it is less likely than not (likelihood is less than approximately balanced or nearly equal) that the Veteran's tonsillar/throat cancer is related to his toxic herbicide exposure, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all documented TERAs. The examiner explained that the Veteran has specifically been diagnosed with tonsillar cancer, and this type of cancer is part of the oropharynx and is not part of the respiratory system which would be presumptive for Agent Orange exposure; rather, according to VA, respiratory cancers are cancers of the lung, larynx, trachea, and bronchus, of which the oropharynx is not included. The examiner further explained that, based on extensive peer journal article reviews, there has been no link found between tonsillar cancer and the Veteran's TCDD or Agent Orange exposure while in Korea. After a thorough review of the evidence, the Board has determined that service connection is not warranted for the Veteran's tonsillar/throat cancer. While the evidence demonstrates a current disability, it does not show that the Veteran's throat cancer is related to his service. As discussed above, the Veteran was not diagnosed with this disability until many years after service in 2012. In addition, the November 2023 VA examiner specifically considered the Veteran's toxic herbicide exposure, concluding there was no causal link between that exposure and tonsillar cancer. The Board affords this opinion significant probative weight. The underlying rationale for the negative nexus findings reflects consideration of pertinent medical records and contain reference to peer-reviewed journal articles regarding linkage between herbicide exposure and tonsillar cancer. Moreover, the VA examiner offered a clear conclusion with reasoned medical explanation that was based on the available facts and the clinician's medical expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Critically, there are no medical opinions of record from similarly qualified medical professionals to weigh against the conclusion made by the November 2023 VA examiner regarding causation. Consequently, the VA examiner's opinion constitutes the most probative medical evidence of record on the issue of causation. Although the Veteran believes his tonsillar/throat cancer is related to an in-service exposure event, he is not competent to provide a nexus opinion more probative than that of the November 2023 VA examiner regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2023 medical opinion as discussed above because it is based on accurate medical history and research review, medical expertise, and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (continued on next page) ? In sum, the evidence persuasively weighs against a finding that the Veteran's throat cancer is causally related to his service. Therefore, service connection for claimed tonsillar/throat cancer (oropharyngeal cancer) is denied and the benefit of the doubt doctrine is not for application. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Picard 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.