NEOPLASM HARD AND SOFT TISSUE MALIGNANT (ORAL CANCER)

Summary

The veteran, who served from January 1956 to August 1959, appeals the severance of service connection for neoplasm hard and soft tissue of the mouth. The agency of original jurisdiction (AOJ) initially granted service connection in July 2023, finding the condition related to service, including asbestos exposure. However, in August 2024, the AOJ proposed severance, citing a finding that the mouth condition was due to basal cell carcinoma, which was less likely than not related to service. The AOJ followed procedural requirements for severance, including notice and opportunity for hearing. The Board found the severance improper, noting that the AOJ conceded the Veteran's in-service asbestos exposure and diagnosed him with a neoplasm of the sinus, nose, throat, larynx, or pharynx. The Board reviewed multiple VA medical opinions, finding several inadequate for failing to address the Veteran's squamous cell carcinoma diagnosis, positive nexus opinions from April 2023, or the Veteran's lay testimony regarding in-service UV exposure. Conflicting opinions existed regarding the cause of the Veteran's skin cancers, with some linking them to asbestos and others to UV radiation. The Board concluded that the evidence did not meet the clear and unmistakable error standard for severance, finding that the Veteran's mouth cancer could not be said to be unrelated to service, including asbestos and sunlight exposure. Service connection was restored.

Rationale

AOJ conceded asbestos exposure; Conflicting VA medical opinions regarding cause of cancer; Inadequate VA opinions failed to address squamous cell carcinoma and UV exposure; Restored service connection due to improper severance

Full Decision Text

Citation Nr: A26038801
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 260303-633738
DATE: April 27, 2026

ORDER

Severance being improper, restoration of service connection for neoplasm hard and soft tissue of the mouth is granted.

FINDING OF FACT

The evidence of record does not show that the July 2023 rating decision granting service connection for neoplasm hard and soft tissue of the mouth was clearly and unmistakably erroneous.

CONCLUSION OF LAW

The severance of service connection for neoplasm hard and soft tissue of the mouth was improper; the criteria for restoration of service connection for neoplasm hard and soft tissue of the mouth, have been met.  38 U.S.C. §§ 1110, 5107, 5112; 38 C.F.R. §§ 3.105, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1956 to August 1959.

The rating decision on appeal was issued in January 2026 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA) system, applies.  

In January 2026, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2025 decision.  In January 2026, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2025 decision.  

In the March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the December 2025 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review.  38 C.F.R. § 20.301.  If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.301, 20.801. 

In adjudicating the Veteran's appeal, the Board acknowledges the recent United States Court of Appeals for Veterans Claims (Court) decision in Williams v. McDonough, 37 Vet. App. 305 (2024), which found that under 38 C.F.R. § 20.202(c)(2), the Board generally may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed.  38 C.F.R. § 20.202(c) allows appellants to switch AMA dockets by completing and submitting a new VA Form 10182 within 60 days from when the Board receives the original VA Form 10182, or one year from the date the AOJ mails notice of the decision on appeal, whichever is later, unless: (1) an appellant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, or (2) the appellant or representative has requested a waiver of the ability to request to switch dockets during this timeframe.  Williams, 37 Vet. App. 305.  In this case, the Veteran submitted a Williams waiver in March 2026.  As such, the Board will proceed with adjudication of the Veteran's appeal.

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, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

Whether the severance of service connection for neoplasm hard and soft tissue of the mouth was proper. 

Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE), the burden of proof being on the Government.  38 C.F.R. § 3.105(d). 

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(d).  The claimant will be notified at his or her latest address of record of the contemplated action, and furnished detailed
.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

Whether the severance of service connection for neoplasm hard and soft tissue of the mouth was proper. 

Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE), the burden of proof being on the Government.  38 C.F.R. § 3.105(d). 

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(d).  The claimant will be notified at his or her latest address of record of the contemplated action, and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained.  Id.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  Id. The initial question before the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection.

To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision.  Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007).  A clear and unmistakable error is one about which reasonable minds could not differ.  See 38 C.F.R. § 3.105(a)(1)(i). 

In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).  However, the determination is not limited to the law and the record that existed at the time of the original decision.  VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that a diagnosis on which service connection was predicated is clearly erroneous.  Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006).

Due Process

In this case, the AOJ initially granted service connection for neoplasm hard and soft tissue of the mouth as directly related to the Veteran's service, to include as due to asbestos exposure, in a July 2023 rating decision.

In August 2024, the AOJ proposed to sever service connection for neoplasm hard and soft tissue of the mouth based on a finding that the Veteran's mouth condition was due to basal cell carcinoma which was less likely than not related to the Veteran's service, to include asbestos exposure.  As such, the AOJ determined there was CUE when service connection was granted in the July 2023 rating decision.  The AOJ subsequently proposed severance of service connection in September 2024 and October 2024.  The AOJ informed the Veteran he had 60 days to provide evidence refuting the determination and 30 days to request a personal hearing. 

In September 2024, the Veteran requested a personal hearing.  The Veteran, and his representative, provided testimony at a predetermination hearing in January 2025.  In a December 2025 rating decision, the AOJ severed service connection for neoplasm hard and soft tissue of the mouth, effective March 1, 2026, more than 60 days after the last day of the month in which a 60-day period from the date of the notification of severance expired.  As such, the procedural requirements to sever service connection for neoplasm hard and soft tissue of the mouth under 38 C.F.R. § 3.105(d) were met. 

Severance

The Board concludes, however, that severance of service connection for neoplasm hard and soft tissue of the mouth was improper. 

As an initial matter, the AOJ found that the Veteran was diagnosed with a disability, to include benign or malignant neoplasm of sinus, nose, throat, l
 soft tissue of the mouth, effective March 1, 2026, more than 60 days after the last day of the month in which a 60-day period from the date of the notification of severance expired.  As such, the procedural requirements to sever service connection for neoplasm hard and soft tissue of the mouth under 38 C.F.R. § 3.105(d) were met. 

Severance

The Board concludes, however, that severance of service connection for neoplasm hard and soft tissue of the mouth was improper. 

As an initial matter, the AOJ found that the Veteran was diagnosed with a disability, to include benign or malignant neoplasm of sinus, nose, throat, larynx or pharynx, and conceded the Veteran's in-service exposure to asbestos.  The Board is bound by these favorable findings.  38 C.F.R. § 3.104(c). 

Service connection may be granted for an injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131.  To establish service connection, the Veteran must show 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, 1167. 

Turning to the evidence of record, the Veteran initially sought service connection for cancer of the lip, cheek, and trachea, to include as due to sun damage and exposure to asbestos.  See October 2022 VA Form 21-526.  The Veteran provided an article titled "Occupational asbestos exposure is associated with pharyngeal squamous cell carcinoma in men from the greater Boston area" that concluded that there was mounting evidence that asbestos is a risk factor for pharyngeal cancer.  See October 2022 correspondence. 

The Veteran was initially afforded a VA examination in March 2023.  The VA examiner diagnosed the Veteran with benign or malignant neoplasm of sinus, nose, throat, larynx, or pharynx.  See March 2023 VA examination.  The VA examiner noted the Veteran was diagnosed with a tumor in his trachea in 1999 and treated with radiation therapy and chemotherapy.  Id.  In a March 2023 VA oral/dental examination, the VA examiner noted the Veteran was diagnosed with cancer, and that he had multiple surgeries and procedures to treat the cancer resulting in loss of bone and the loss of all of his teeth.  In a March 2023 VA skin conditions examination, the VA examiner diagnosed the Veteran with skin cancer.

The VA examiner opined that the Veteran's skin cancer was less likely than not caused by his asbestos exposure.  See April 2023 VA medical opinion.  In a May 2023 VA medical opinion, the VA examiner opined that it was less likely than not that the Veteran's skin cancer was proximately due to or the result of cancer of the trachea, cheek, lung, and/or lip.  However, the VA examiner opined that the Veteran's cancer of the trachea, left and right cheeks, and lips, were at least as likely as not caused by his asbestos exposure.  Id.  The VA examiner noted the records did not indicate any risk factors outside of military service; asbestos is a risk factor for pharyngeal cancer; and the Veteran's records indicate a history of squamous cell carcinoma and other types of cancer in all the areas that asbestos is claimed to affect.  Id.  The VA examiner noted there were several factors that contribute to the biologic plausibility that asbestos may cause cancer of the larynx, and per the Institute of Medicine, there is an increased risk of laryngeal cancer with exposure to asbestos.  Id.

In a May 2023 VA medical opinion, the VA examiner opined that it was less likely than not that the Veteran's skin cancer was caused by his service, including in-service asbestos exposure.  See May 2023 VA medical opinion.  As rationale, the VA examiner noted the Veteran also has a diagnosis of basal cell carcinoma which is caused by long term exposure to UV radiation from the sunlight; and medical literature is silent for any correlation between basal cell carcinoma and asbestos exposure.  Id.  However, the VA examiner did not address the Veteran's assertion that he was exposure to sunlight during his service.  Therefore, the Board finds the May 2023 VA medical opinion inadequate for decision making purposes.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  

The Veteran was afforded a second VA skin conditions examination in November
 including in-service asbestos exposure.  See May 2023 VA medical opinion.  As rationale, the VA examiner noted the Veteran also has a diagnosis of basal cell carcinoma which is caused by long term exposure to UV radiation from the sunlight; and medical literature is silent for any correlation between basal cell carcinoma and asbestos exposure.  Id.  However, the VA examiner did not address the Veteran's assertion that he was exposure to sunlight during his service.  Therefore, the Board finds the May 2023 VA medical opinion inadequate for decision making purposes.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  

The Veteran was afforded a second VA skin conditions examination in November 2023.  The VA examiner diagnosed the Veteran with basal cell carcinoma.  See November 2023 VA examination.  The VA examiner opined that the Veteran's basal cell carcinoma was less likely than not caused by the in-service asbestos exposure.  Id.  As rationale, the VA examiner provided the same rationale as in the May 2023 VA examination.  Id.  The VA examiner also noted the Veteran's separation examination was silent; there was no evidence of skin cancers while in service; and the Veteran's skin cancers were all diagnosed several decades post-service.  Id.  Additionally, the VA examiner opined that the Veteran's basal cell carcinoma was less likely than not proximately due to or the result of his neoplasm of the hard and soft tissue of the mouth and lung cancer.  Id.  As rationale, the VA examiner only noted that the Veeran was diagnosed with aggressive basal cell carcinoma of the face.  Id.  However, the VA examiner did not address the Veteran's diagnoses for cancer of his trachea, cheeks, and lips, or the positive nexus opinions provided in April 2023.  The VA examiner also did not address the Veteran's assertion that he was exposed to sunlight while in service.  Moreover, the VA examiner did not address whether the Veteran's basal cell carcinoma was aggravated by a service connected disability.  Therefore, the Board finds the November 2023 VA medical opinion inadequate for decision making purposes.  Nieves-Rodriguez, 22 Vet. App. at 302.  Similarly, December 2023 and January 2024 VA medical opinions rely on the Veteran's diagnosis for basal cell carcinoma, and do not address the Veteran's diagnosis of squamous cell carcinoma, or prior positive medical opinions.  Therefore, the Board finds the December 2023 and January 2024 VA medical opinions inadequate for decision making purposes.  Nieves-Rodriguez, 22 Vet. App. at 302. 

In a March 2024 VA medical opinion, the VA examiner agreed with the medical opinion provided in April 2023 that the Veteran's mouth cancer is at least as likely as not caused by asbestos exposure.  See March 2024 VA medical opinion.  In a May 2024 VA medical opinion, the VA examiner noted records review shows the Veteran has a longstanding history of cancer in multiple organs and areas of the body, including squamous cell carcinoma and basal cell carcinoma of the cheek, chest, back, eyebrow, clavicle, neck, temple, jawline, mouth, left medical canthus of the eye, among others.  See May 2024 VA medical opinion.  The VA examiner noted both the Veteran's squamous cell carcinoma and basal cell carcinoma have manifested on the skin in proximity to the mouth.  Id. 

In a July 2024 VA medical opinion, the VA examiner noted that although the most common cause of basal cell carcinoma is UV exposure from the sun, the Veteran did have radiation treatment for his throat, lip, and mouth cancer, and that treatment for cancer using radiation has also been known to cause basal cell carcinoma.  See July 2024 VA medical opinion.  The VA examiner noted, however, an oncologist would be better to associate the question as to whether Veteran's basal cell carcinoma was more likely caused by the UV exposure or radiation treatment.  Id. 

A November 2024 VA examination confirmed the Veteran's diagnosis for both basal cell carcinoma and squamous cell carcinoma.  See November 2024 VA examination. 

In January 2025, the Veteran testified at a predetermination hearing.  The Veteran testified that he was exposed to excessive sunlight and UV exposure while in service; that he was outside in the sunlight without a shirt; he was not provided any sunscreen; and was out in the sunlight most of the time working on guns as a gunner's mate.  See January 2025 hearing transcript.  The Veteran's representative asserted that none of the VA medical opinions acknowledged the Veteran's in-service exposure to sunlight and based the proposal to sever service connection on a finding that the Veteran's basal cell carcinoma caused
4 VA examination confirmed the Veteran's diagnosis for both basal cell carcinoma and squamous cell carcinoma.  See November 2024 VA examination. 

In January 2025, the Veteran testified at a predetermination hearing.  The Veteran testified that he was exposed to excessive sunlight and UV exposure while in service; that he was outside in the sunlight without a shirt; he was not provided any sunscreen; and was out in the sunlight most of the time working on guns as a gunner's mate.  See January 2025 hearing transcript.  The Veteran's representative asserted that none of the VA medical opinions acknowledged the Veteran's in-service exposure to sunlight and based the proposal to sever service connection on a finding that the Veteran's basal cell carcinoma caused the mouth cancer.  Id. 

In a January 2025 VA medical opinion, the VA examiner opined that it was less likely than not that the Veteran's basal cell carcinoma was less likely than not proximately due to or the result of the Veteran's service connected lung cancer.  See January 2025 VA medical opinion.  As rationale, the VA examiner noted there is no scientific and or professional literature that states and/or explains that any non-small cell lung cancer can be associated as a risk factor of other types of skin cancers; and the Veteran's basal cell carcinoma of the left cheek is more likely than not related to risk factors of age, UV, and/or sunlight exposure at this time.  Id.  The VA examiner further noted that radiation exposure from treatments such as other types of cancers does increase the risk of developing other types of skin cancers such as basal cell carcinoma; however, the VA examiner noted this is a rare occurrence and it would be mere speculation to suggest that the Veteran's basal cell carcinoma was directly related and/or caused by his previous radiation treatment for neoplasm of the mouth and laryngeal cancers.  Id.  However, the VA examiner did not address the Veteran's diagnosis of squamous cell carcinoma, the prior positive VA medical opinions, or the Veteran's lay statements regarding UV exposure during his military service.  Additionally, the VA examiner did not provide an aggravation medical opinion.  Therefore, the Board finds the January 2025 VA medical opinion inadequate for decision making purposes.  Nieves-Rodriguez, 22 Vet. App. at 302.  

Based on the foregoing, it cannot be said that the Veteran's neoplasm hard and soft tissue of the mouth is not related to his active duty service, including exposure to asbestos and sunlight.  There are conflicting VA medical opinions that do not adequately address the Veteran's diagnosis for squamous cell carcinoma; the Veteran initially sought service connection for cancer of the lip, cheek, and trachea; and April 2023 VA medical opinions determined the Veteran's cancer of the cheeks and lip were at least as likely as not caused by asbestos exposure and linked it to squamous cell carcinoma rather than basal cell carcinoma.  The Board finds that the burden of proof required for severance of service connection under 38 C.F.R. § 3.105(d) is not met; that severance of service connection for neoplasm hard and soft tissue of the mouth was improper; and restoration of service connection for neoplasm hard and soft tissue of the mouth, effective March 1, 2026, is warranted.     

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Moore

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.