Citation Nr: 18131314
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 17-54 446
DATE:	August 31, 2018

REMANDED
Entitlement to service connection for oropharyngeal squamous cell carcinoma including as due to exposure to herbicide agents is remanded.
Entitlement to service connection for metastatic squamous cell carcinoma to the lymph nodes including as due to exposure to herbicide agents and as secondary to oropharyngeal squamous cell carcinoma is remanded.

REASONS FOR REMAND
The Veteran served on active duty in the Marine Corps from August 1969 to May 1971.  His service included service in Vietnam.
1. Entitlement to service connection for oropharyngeal squamous cell carcinoma including as due to exposure to herbicide agents
Because the Veteran served in Vietnam, there is a presumption that he was exposed to one of the relevant herbicide agents.  See 38 U.S.C. § 1116(f) (there is a rebuttable presumption of herbicide exposure in the case of veterans who served in Vietnam); see also 38 C.F.R. § 3.307(a)(6)(iii) (presumption for Vietnam veterans who have conditions listed in 38 C.F.R. § 3.309(e)).  The record contains no evidence to rebut the presumption of herbicide exposure and, in any case, the RO has already conceded such in accordance with applicable regulations and evidence.  This fact is established for purposes of the Veteran’s claims.
Given the Veteran’s current health condition and his motion to advance this matter on the docket, the Board regrets that this matter must be remanded rather than decided.  Unfortunately, the record is not sufficient to render a decision.
The diseases presumptively associated with herbicide exposure do not specifically include oropharyngeal squamous cell carcinoma or metastatic squamous cell carcinoma to the lymph nodes and do not otherwise include categories of cancer that would apply to the Veteran’s condition.  38 C.F.R. § 3.309(e) (2017).  Therefore, the evidence currently of record does not support the award of presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309(e).
Where the evidence does not warrant presumptive service connection, a Veteran may still establish service connection with proof of direct causation.  See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  However, there is not sufficient medical evidence currently of record either for or against direct causation to make that determination.
The Veteran and his representatives submitted an April 2017 letter from the Veteran’s treating physician.  The physician notes the particular diagnosis (“cancer at the right base of the tongue with deep muscle of the tongue invasion, status post tracheostomy”).  The examiner noted that the Veteran had a light history of smoking one half of a pack of cigarettes per day for 10 years and that he quit in 1977.  He also noted the exposure to herbicide agents during the Veteran’s service in Vietnam.  The examiner opined:  
It is quite possible that Agent Orange exposure was a factor in the development of this malignancy.  Agent Orange has been implicated as a risk factor for the development of this malignancy.  Agent Orange has been implicated as a risk factor for the development of certain cancers of the head and neck, in particular, cancer of the larynx.  Given that association, it is not reasonable to conclude that only that portion of the head and neck anatomy would be at risk for the development of malignancy after such exposure.  It is as likely as not that Agent Orange exposure played a role in the development of [the Veteran’s] cancer of the base of tongue, in addition to the well-established risk factors of tobacco and HPV exposure.
The opinion is initially stated in terms of possibilities and, when it does use the requisite standard, indicates that exposure to herbicide agents “played a role in the development of [the Veteran’s] cancer of the base of tongue, in addition to well-established risk factors of tobacco and HPV exposure.”  Moreover, the rationale for the opinion is that “certain cancers of the head and neck” have been associated with exposure to herbicide agents and, according to the physician, “it is not reasonable to conclude that only that portion of the head and neck anatomy would be at risk for the development of malignancy after such exposure.”  Of course, the applicable regulations do make that distinction.  See Veterans and Agent Orange:  Update 2010, 77 Fed. Reg. 47924-01 (Aug. 10, 2012) (finding there is evidence of an association between herbicide agent exposure and respiratory cancers, but concluding: “Consistent with its finding in Update 2008, NAS in Update 2010, found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and the following conditions: (1) Cancers of the oral cavity…, pharynx (including tonsils),…”).  The private opinion should, but does not, engage with the different treatment of, for example, cancers of the oral cavity versus respiratory cancers in the regulations and medical literature upon which those regulations are based.  This fact together with the language of the opinion which speaks in terms of “possibilities” and the likelihood that herbicide agents “played a role” is not sufficient to decide the claim in this matter.
However, there is no competent medical evidence specific to this case that provides significant probative weight against the claim.  The RO did not obtain a VA examiner’s opinion, though one is required under the circumstances of this case.  See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006); Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994).
The matter will be remanded to obtain an opinion on direct service connection.
2. Entitlement to service connection for metastatic squamous cell carcinoma to the lymph nodes including as due to exposure to herbicide agents and as secondary to oropharyngeal squamous cell carcinoma
The Veteran’s claim of entitlement to service connection for metastatic squamous cell carcinoma to the lymph nodes is based, primarily on the allegation that the oropharyngeal squamous cell cancer is service-connected.  There are no opinions regarding either direct or secondary service connection for this condition, though the evidence does tend to establish that the cancer is a metastasis of the oropharyngeal squamous cell cancer.  An opinion directly addressing these issues would facilitate a decision on this claim.  Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (holding that an opinion obtained regarding secondary service connection must address both causation and aggravation of the nonservice-connected condition); 38 C.F.R. § 3.310.
The matter is REMANDED for the following action:
1. The entire claims file should be reviewed by an appropriate medical professional to determine the etiology of the Veteran’s oropharyngeal squamous cell carcinoma and his metastatic squamous cell carcinoma to the lymph nodes.  An examination is not required, unless it is deemed needed.
After reviewing the record, the examiner should address the following:
a.	Is it at least as likely as not (50 percent probability or greater) that the Veteran’s oropharyngeal squamous cell carcinoma was incurred in or is otherwise related to his active service, to include conceded exposure to herbicide agents?
b.	Is it at least as likely as not (50 percent probability or greater) that the Veteran’s metastatic squamous cell carcinoma to the lymph nodes was incurred in or is otherwise related to his active service, to include conceded exposure to herbicide agents?  If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s metastatic squamous cell carcinoma to the lymph nodes was caused by his oropharyngeal squamous cell carcinoma (e.g., is it a metastasis of the oropharyngeal squamous cell carcinoma)?
In answering both of these questions, it would be helpful if the examiner discussed pertinent medical literature and the April 2017 private opinion by the Veteran’s treating physician.
The examiner is advised that simply stating these cancers are not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion.  Rather, the examiner should discuss this particular veteran’s medical history and risk factors along with the medical principles in arriving at a conclusion.  The examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made.
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kerry Hubers, Counsel

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