Citation Nr: 20005853 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-01 288 DATE: January 23, 2020 ORDER Entitlement to service connection for tongue squamous cell carcinoma as due to herbicide exposure is granted. REMANDED Entitlement to an initial rating for coronary artery disease status post coronary artery bypass graft surgery in excess of 10 percent prior to April 29, 2019, and in excess of 30 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s tongue squamous cell carcinoma is causally or etiologically due to his exposure to herbicides during service. CONCLUSION OF LAW The criteria for entitlement to service connection for tongue squamous cell carcinoma as due to exposure to herbicides has been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1966 to April 1968, including in the Republic of Vietnam. The matter arises from an April 2016 rating decision. The claim was remanded by the Board of Veterans’ Appeals (Board) in February 2019. A claim of entitlement to service connection for larynx cancer as due to herbicide exposure was raised and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. See February 2008 R. W. J. U. H. medical record; see also Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for tongue squamous cell carcinoma as due to herbicide exposure is granted. The Veteran contends that his tongue squamous cell carcinoma is due to his herbicide exposure during his active duty service in Vietnam. For the following reasons, service connection for tongue squamous cell carcinoma is granted. First, the Board finds that the Veteran currently has tongue squamous cell carcinoma. See April 2019 VA Dental and Oral Conditions Disability Benefits Questionnaire (DBQ). Therefore, the current diagnosis requirement is met. Next, the Veteran served on active duty from March 1966 to April 1968, including service in the Republic of Vietnam. See DD-214 (indicating foreign service in Vietnam). Based on the Veteran’s service in the Republic of Vietnam, herbicide exposure is presumed. See 38 C.F.R. § 3.307 (a)(6). Thus, the in-service incurrence element is also met. Finally, the nexus element is met as the Board finds that there is a relationship between the current disability and the Veteran’s active duty service. The Board finds persuasive the April 2019 VA etiology opinion, in which the examiner opined that it is at least as likely as not that the Veteran’s cancer was caused by the exposure of herbicides experienced by the Veteran during active duty. The examiner based this opinion after examining the Veteran in person, reviewing the claims file, and researching relevant medical literature, to which he then cited. Hence, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence overall supports the finding that the Veteran’s tongue squamous cell carcinoma was incurred in service, at least to an evidentiary position of equipoise. See 38 C.F.R. § 3.307, 4.124a; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. at 54. Therefore, service connection for tongue squamous cell carcinoma is granted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). REASONS FOR REMAND 1. Entitlement to an initial rating for coronary artery disease status post coronary artery bypass graft surgery in excess of 10 percent prior to April 29, 2019, and in excess of 30 percent thereafter, is remanded. Although further delay is regrettable, the Board finds that the claim for an initial rating in excess of 10 percent prior to April 29, 2019 and in excess of 30 percent thereafter for service-connected coronary artery disease status post coronary artery bypass graft surgery should be remanded for further development. The Veteran’s coronary artery disease is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Thus, evaluating the Veteran’s claim for a higher rating turns, in part, on his level of metabolic equivalents (METs) at which dyspnea, fatigue, angina, dizziness, or syncope develops. See 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). VA regulations specifically require METs levels to be determined by a laboratory determination of the METs level through METs exercise testing, unless the exercise test cannot be performed for medical reasons. See 38 C.F.R. § 4.104, Note (2) (2018). Here, however, the Veteran, who most recently underwent a VA examination for Heart Conditions in April 2019 was not afforded the requisite METs exercise stress test at this examination. See April 2019 VA C&P Exam for Heart Conditions. As to why the exercise stress test was not performed, the examiner did not provide a response. Because no response was provided, it is unclear whether the test was not performed because the test, in general, is not without significant risk, or that it was not performed because of a medical contraindication specific to the Veteran, when the latter reason would be the valid reason for not performing a METs exercise test. See 38 C.F.R. § 4.104, Note (2) (2018). Based on the foregoing, the Board finds that remand is necessary for an addendum opinion from the April 2019 VA examiner, who examined the Veteran in-person, to elaborate on the reason why a METs exercise test was not administered on the Veteran. If the reason is medical (a medical contraindication specific to the Veteran), the examiner should explain in detail that medical reason. On the other hand, if the reason is not because of a medical contraindication specific to the Veteran, then a METs exercise test should be administered on the Veteran by the April 2019 VA examiner, or if the April 2019 VA examiner is unavailable, then by another in-person examiner, unless that examiner provides in detail a medical reason for why the test should not be administered on the Veteran. 2. Entitlement to a TDIU due to a service-connected disability is remanded. The claim of entitlement to TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on the other claim has been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the April 2019 VA examiner on if there was a medical reason(s) for why the Veteran’s METs level was not determined by a laboratory determination of the METs level through METs exercise testing at the April 2019 VA examination. (a) If the April 2019 VA examiner reports a medical reason(s) why a METs exercise test was not administered on the Veteran, the examiner must explain in detail that medical reason(s). (b) If the April 2019 VA reports a non-medical reason(s) why a METs exercise test was not administered on the Veteran, the examiner must explain in detail that non-medical reason(s), and then review the claims file and perform the METs exercise test on the Veteran. (c) If the April 2019 VA examiner is unavailable, the RO should schedule the Veteran for an in-person VA examination with another examiner to perform a METs exercise test on the Veteran, unless the examiner finds that a METs exercise test cannot be performed for a medical reason(s). In the case where the examiner finds that a METs exercise test cannot be performed for a medical reason(s), the examiner must specifically provide the reason as to why it was not possible or not medically recommended for the Veteran to undergo the METs exercise test. The examiner should then estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, 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.