NEOPLASM HARD AND SOFT TISSUE MALIGNANT (ORAL CANCER)

Summary

The Veteran, who served in the United States Marine Corps from June 1969 to February 1972, appeals the denial of service connection for tongue cancer. The Veteran contends that his cancer is due to toxic exposures during service. The primary issue is whether the Veteran's tongue cancer is related to his military service. The Board reviewed evidence including a September 2012 VA examination, a January 2022 private physician's opinion, and an October 2022 VA examination. The September 2012 VA examiner attributed the cancer to smoking and drinking, not service-related exposures. The January 2022 private physician opined that the Veteran's tongue cancer was due to his service, citing peer pressure-induced tobacco and alcohol use in Vietnam, Agent Orange exposure, and subsequent contaminated water exposure at Camp Lejeune as overwhelming evidence linking the cancer to his service. The October 2022 VA examiner, reviewing records but not examining the Veteran, opined the cancer was less likely than not due to service, suggesting a post-service event but not specifying it, while noting smoking and drinking are risk factors but not causation. The Board found an approximate balance of evidence, applying the benefit of the doubt doctrine. It found the private opinion highly probative due to its consideration of all exposures and clear rationale, contrasting it with the VA examiner's lack of specificity regarding post-service causes and the ambiguous role of risk factors. Consequently, the Board granted service connection for tongue cancer.

Rationale

Approximate balance of evidence; Benefit of the doubt applied; Private opinion found highly probative

Full Decision Text

Citation Nr: A26022987
Decision Date: 03/13/26	Archive Date: 03/13/26

DOCKET NO. 230316-331521
DATE: March 13, 2026

ORDER

Entitlement to service connection for squamous cell carcinoma of the tongue (tongue cancer) is granted.

FINDING OF FACT

Resolving all doubt in favor of the Veteran, his tongue cancer is related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for squamous cell carcinoma of the tongue have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the United States Marine Corps from June 1969 to February 1972.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

Although the Veteran initially requested Higher-Level Review when submitting the July 2022 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. 

In the March 16, 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on March 9, 2026 with the undersigned Veterans Law Judge.

Therefore, the Board may only consider the evidence of record at the time of the January 2023 AOJ supplemental claim decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302.  If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

The Board notes that there is no prejudice against the Veteran proceeding with the appeal before the full 90 day evidentiary window closes because this decision grants the Veteran's claim for service connection.

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.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

This appeal has been advanced on the docket, pursuant to 38 C.F.R. § 20.902.

Entitlement to service connection for tongue cancer.

The Veteran contends that his tongue cancer is due to his toxic exposure in service.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may also be granted for a disease or injury first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

A Veteran is competent to describe symptoms that he experienced in service or at any time after service, when the symptoms he perceived or experienced were directly through the senses.  38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469
2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may also be granted for a disease or injury first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

A Veteran is competent to describe symptoms that he experienced in service or at any time after service, when the symptoms he perceived or experienced were directly through the senses.  38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

In September 2012, an examiner opined the Veteran's tongue cancer was most likely due to "the combination of his chronic heavy daily cigarette smoking and drinking" and not from his conceded exposure to contaminated water at Camp Lejune.  The examiner did not consider any of the Veteran's other toxic exposures in service.  

In January 2022, the Veteran submitted an opinion from a private physician who opined the Veteran's tongue cancer was due to his toxic exposure in service.  As rationale, the examiner noted

I can conclude that the patient developed peer pressure-induced habitual use of tobacco and alcohol while in Vietnam as well as exposure to Agent Orange, and subsequent exposure to contaminated water at Camp Lejeune NC.  Although each one of these exposures have been linked to the development of squamous cell carcinoma of the mouth, three sequential exposures taken together provide overwhelming evidence that the squamous cell carcinoma of the oral cavity is linked to [the Veteran's] service within the Marines.

In October 2022, a VA examiner provided an opinion as to the Veteran's tongue cancer.  The opinion was based on a review of records; the examiner did not examine the Veteran either in-person or virtually.  The VA examiner opined the Veteran's tongue cancer was less likely than not due to his time in service.  As rationale, the examiner opines "without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology."  The examiner does not indicate what that post-service event, illness, or injury might be.  The examiner does note that "smokers are five times more likely to develop tongue cancer than nonsmokers" but also concedes 

while smoking and drinking alcohol are risk factors in the development of throat cancer, risk factors do not equate to causation.  Not all smokers nor alcohol drinkers develop throat cancer.

Upon review of the record, the Board finds that there is an approximate balance of positive and negative evidence and therefore finds that the benefit-of-the-doubt doctrine applies.  The September 2012 examiner opined that the Veteran's tongue cancer was due to smoking and drinking, but the October 2022 VA examiner noted that, although smoking and drinking are risk factors for throat cancer, it is not causation and not all smokers and drinkers develop throat cancer.  The October 2022 VA examiner opined a post-service event, illness, or injury was a more likely etiology for the Veteran's tongue cancer, but does not indicate what that post-service event, illness, or injury might be.  In contrast, the January 2022 private examiner considered all the Veteran's in-service exposures, including smoking and drinking, opining that "three sequential exposures taken together provide overwhelming evidence that the squamous cell carcinoma of the oral cavity is linked to [the Veteran's] service within the Marines."  The Board finds the private medical opinion highly probative.  The examiner considered the Veteran's entire medical history as well as his lay statements and provided a clear conclusion with supporting rationale.

Thus, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tongue cancer is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  The appeal is granted.

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Feistritzer, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not preced
 Marines."  The Board finds the private medical opinion highly probative.  The examiner considered the Veteran's entire medical history as well as his lay statements and provided a clear conclusion with supporting rationale.

Thus, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tongue cancer is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  The appeal is granted.

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Feistritzer, 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.