Citation Nr: 1319910 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-44 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for neck cancer. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from August 1960 to July 1981, including service in the Republic of Vietnam. This matter came to the Board of Veterans' Appeals (Board) on appeal from December 2008 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2013 written arguments, the representative indicated that the appellant wished to raise a claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities, as he was unable to maintain substantially gainful employment as a result of his service-connected disabilities, including diabetes mellitus, degenerative arthritis of the left knee and right foot, degenerative disc disease at L5-S1, gout, a bilateral shoulder disability, and a right fourth finger disability. The record currently available to the Board, including the appellant's Virtual VA file, contains no indication that the RO has, as yet, had the opportunity to address this matter. Thus, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. In May 2013, the appellant's representative submitted a motion to advance this case on the Board's docket in light of the appellant's advanced age. Later that month, the Board granted the motion and advanced the appellant's case on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reasons set forth below, a remand of this matter is required. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Neck cancer The appellant seeks entitlement to service connection for neck cancer, which he contends is causally related to his exposure to Agent Orange during his tour of duty in Vietnam. Under applicable VA regulation, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The term Vietnam era means the period which began on February 28, 1961, and ended on May 7, 1975, if the Veteran served in the Republic of Vietnam during that period. Otherwise, Vietnam era means the period which began on August 5, 1964, and ended on May 7, 1975. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f). A review of the record indicates that the service department has verified that the appellant served in the Republic of Vietnam from December 1963 to November 1964. Absent evidence to the contrary, he is therefore legally presumed to have been exposed to herbicides during such service. If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include respiratory cancers (cancer of the lung, bronchus, larynx, or trachea. See 38 C.F.R. § 3.309(e). The Secretary, however, has determined that a positive association does not exist between herbicide exposure and pharyngeal cancers. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395--32,407 (June 12, 2007). A review of the medical evidence currently associated with record indicates that in February 2000, the appellant sought medical evaluation of a hard knot in his right digastric node area. On deep biopsy the following month, the appellant was diagnosed as having extensive metastatic, poorly differentiated squamous cell carcinoma of the neck with an unknown primary. Later in March 2008, the appellant underwent excision of the neck mass. The procedure was again negative for any evidence of a primary lesion. For treatment purposes, however, the appellant's oncologist indicated that he would presume the cancer to be pharyngeal in origin and recommend aggressive radiation therapy and chemotherapy. Following completion of the therapy, the diagnosis was TX, N2B squamous cell carcinoma of the head and neck region of unknown primary. Based on the foregoing, the appellant's primary cancer remains unclear. Although his treating physicians have repeatedly indicated that the primary source is uncertain, given the location of the cancer, a medical opinion is nonetheless needed in order to determine whether it is at least as likely as not that the primary source is a "respiratory cancer" for purposes of determining whether the presumptive Agent Orange regulations are for application. The Board also notes that in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Thus, to ensure VA has met its duty to assist, an examination is necessary. Bilateral hearing loss The appellant also seeks service connection for bilateral hearing loss. He originally contended that his hearing loss is causally related to his duties as a military pilot, an occupation known to be associated with hazardous noise exposure. More recently, the appellant's representative has submitted an article from the National Institutes of Health discussing a study which found that hearing loss may be a complication of diabetes mellitus. As set forth above, service connection is currently in effect for diabetes mellitus. The appellant service personnel records confirm that he served as a military pilot and flight instructor for nearly twenty years. The record also contains medical evidence establishing that the appellant has been diagnosed as having hearing loss which meets the criteria set forth at 38 C.F.R. § 3.385 (2012). In January 2010, the appellant underwent VA audiology examination. The examiner opined that it was less likely than not that the appellant's current hearing loss was related to his military noise exposure. Notably, the January 2010 examiner failed to provide a rationale for his conclusion. Although the examiner did review the appellant's service treatment records, including multiple audiometric tests, some of which showed decreased hearing acuity, he did not comment on the significance of those results. In any event, it is well established that even if a Veteran does not exhibit hearing loss during active duty, such does not prohibit service connection. Rather, service connection may still be established if a Veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993). Absent a rationale, the examiner's opinion is of limited probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). Additionally, given the appellant's recent contentions to the effect that his hearing loss may be secondary to his diabetes mellitus, a medical opinion addressing that issue is required. A remand is therefore necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The appellant should be scheduled for a VA medical examination to determine the nature and etiology of his neck cancer. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and additional records in Virtual VA, the examiner must opine whether it is at least as likely as not that the appellant's neck cancer may be characterized as a respiratory cancer, such as cancer of the lung, bronchus, larynx, or trachea. If not, the examiner must opine whether it is at least as likely as not that the appellant's neck cancer is causally related to his active service or any incident therein, including his presumed exposure to Agent Orange. If not, the examiner must explain why not. A complete rationale must be provided for any opinion offered. 2. The appellant should also be scheduled for a VA medical examination to determine the nature and etiology of his current hearing loss. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and any additional records in Virtual VA, the examiner must opine whether it is at least as likely as not that the appellant's current hearing loss is causally related to his active service or any incident therein, including noise exposure during his twenty years as a military pilot and flight instructor. If not, the examiner must opine whether it is at least as likely as not that the appellant's hearing loss is causally related to or aggravated by his service-connected diabetes mellitus. A complete rationale must be provided for any opinion offered, including specific reference to the appellant's service-treatment records, including the multiple in-service audiometric tests, as well as the medical article submitted by the appellant regarding the relationship between hearing loss and diabetes mellitus. 3. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO/AMC must review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. After undertaking any additional development deemed necessary, the RO/AMC must readjudicate claims, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).