Citation Nr: 21000120 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-19 223 DATE: January 4, 2021 ISSUE Entitlement to service connection for hyalinizing clear cell carcinoma (malignant salivary gland neoplasm). REMANDED Entitlement to service connection for hyalinizing clear cell carcinoma (malignant salivary gland neoplasm) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1968 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2019. In that January 2019 decision, the Board remanded the matter for an addendum opinion regarding the etiology of the Veteran’s hyalinizing clear cell carcinoma (malignant salivary gland neoplasm). For reasons that will be explained below, the Board finds that the Veteran’s claim must be remanded for an additional addendum VA opinion. Such development is necessary to aid the Board in making an informed decision and will help ensure that the claim is afforded every consideration. The Board notes that the Veteran submitted additional medical evidence since the issuance of the June 2020 SSOC. However, as the Form 9 addressing the issue on appeal was received after February 2, 2013, a waiver of review of the evidence by the Agency of Original Jurisdiction is not required. See 38 U.S.C. § 7105 (2012). This matter is advanced on the docket pursuant to 38 C.F.R. § 20.902 (c). Entitlement to service connection for hyalinizing clear cell carcinoma (malignant salivary gland neoplasm) is remanded. The Veteran claims that he is entitled to service connection for hyalinizing clear cell carcinoma (hereinafter “clear cell carcinoma of the base of the tongue”) because his cancer meets the definition of respiratory cancers or, in the alternative, meets the definition of clear cell sarcoma of the tendons and aponeuroses, and therefore, is subject to presumptive service connection based on herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s DD 214 shows that he was deployed to Vietnam from July 4, 1970 until July 3, 1971, and served as an advisor on the U.S. Military Assistance Service Command, Vietnam (“MACV”) Advisory Team 21, Pleiku RVN, to troops of the Army of the Republic of Vietnam (“ARVN”) in the Central Highlands of South Vietnam. See DD 214. His military personnel records also show that he received the Vietnam Service Medal, Republic of Vietnam Campaign Medal, Parachutist Badge, and the Vietnamese Ranger Badge. Therefore, the Board agrees with the RO’s assessment that the evidence in the record confirms the Veteran’s service in Vietnam during the prescribed period and that as such, his exposure to Agent Orange is conceded. Pursuant to 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e), if a veteran is found to have been exposed to an herbicide agent during active military naval, or air service, certain disabilities will be presumed to be causally related to that herbicide agent exposure even though there is no record of such disease during service. Among the seven diseases that are presumed to be causally related to herbicide agent exposure are respiratory cancers and clear cell sarcoma of the tendons and aponeuroses. 38 C.F.R. §§ 3.309(e). The respiratory cancers recognized as presumptive diseases include cancers of the larynx, the trachea, the bronchus and the lung. The Veteran argued that his clear cell carcinoma of the base of the tongue can be characterized, at least in part, as a soft tissue sarcoma, which includes clear cell sarcoma of the tendons and aponeuroses, because the June 2015 surgical pathology report states that “potential mimics of [hyalinizing clear cell carcinoma] … with morphologic overlap … include clear cell variants of squamous cell carcinoma (SCC)” and pseudosarcomatous tissue has a definitive relationship with SCC. The Veteran argued that his clear cell carcinoma of the base of the tongue is a respiratory cancer because his June 2015 surgical pathology report indicated the presence of metastatic carcinoma in a left neck level 3 lymph node, which is located in a region between the hyoid bone and the cricoid bone, that corresponds to the larynx. Therefore, the Veteran argues that his clear cell carcinoma of the base of the tongue can be characterized as a presumptive respiratory cancer of the larynx. Alternatively, the Veteran has argued that he is entitled to service connection because there is a direct causation between his exposure to Agent Orange while in Vietnam and the development of his clear cell carcinoma of the base of the tongue. See October 2015 Statement in Support of Claim. The Veteran was afforded a November 2015 VA medical opinion regarding the etiology of his clear cell carcinoma of the base of the tongue. The examiner opined that it is not at least as likely as not that the Veteran’s clear cell carcinoma of the base of the tongue qualifies as a soft tissue sarcoma because clear cell carcinomas and sarcomas are entities from completely separate tissue cell lines. The examiner further specified that carcinomas come from the epithelial tissue line and sarcomas come from the connective tissue line. See November 2015 Medical Opinion. Pursuant to the Board’s January 2019 remand directives, the Veteran was afforded a November 2019 Addendum Medical Opinion. The examiner was also requested to address whether the Veteran’s tongue cancer qualified as a respiratory cancer for purposes of presumptive service connection. 38 C.F.R. § 3.309 (e). The November 2019 examiner determined that the Veteran’s tongue cancer did not qualify as a respiratory cancer. The examiner explained that the tongue is an organ of the alimentary system (the system relating to nourishment or sustenance). Therefore, tongue cancer does not qualify as a respiratory cancer. See November 2019 Medical Opinion. The November 2019 examiner was also instructed to address the Veteran’s contention that his hyalinizing clear cell carcinoma (malignant salivary gland neoplasm) was caused by direct exposure to herbicides. While the examiner rendered a negative nexus opinion in this regard, it is not clear that the examiner considered the Veteran’s contention that during service in South Vietnam, he was in the field for prolonged periods of time with subsequent prolonged exposure to defoliants and occasional spraying of the immediate area. Further, the Veteran contended that with prolonged field duty separated from US support units, he consumed substantial quantities of locally grown Vietnamese food all of which was subject to herbicidal contamination. See October 2015 Lay Statement; See also, attachment to November 25, 2016, Notice of Disagreement (NOD), pgs. 1-2. Additionally, the Board notes that the Veteran’s counsel has submitted medical articles on behalf of the Veteran regarding an association between his hyalinizing clear cell carcinoma (malignant salivary gland neoplasm) and herbicide exposure. It is not clear that these articles were considered in rendering this November 2019 Addendum Medical Opinion. See also November 25, 2016 NOD re: article list. Moreover, as referenced in the introduction of this decision, the Veteran has submitted additional medical records that bears on the nature of his hyalinizing clear cell carcinoma (malignant salivary gland neoplasm). See e.g., Document Review Report re: conflicting pathologies and disease behavior between his initial clear cell carcinoma and current disease, pg. 14/50. The Board finds that in addition to considering the Veteran’s contention regarding direct exposure to herbicides, and addressing the articles submitted on behalf of the Veteran regarding an association between hyalinizing clear cell carcinoma (malignant salivary gland neoplasm) and herbicides, that the examiner should review these additional medical records added to the claims file regarding the nature the Veteran’s hyalinizing clear cell carcinoma (malignant salivary gland neoplasm). See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). For the reasons stated above, this matter is remanded for an additional addendum opinion which addresses these issues. Such development is necessary to aid the Board in making an informed decision and will help ensure that the Veteran’s claim is afforded every consideration. Accordingly, this matter is REMANDED for the following action: 1. Return the claims file, including a copy of this remand, to the examiner who provided the November 2019 Addendum Opinion. If that clinician is unavailable, forward the Veteran's claims file to an appropriate medical professional/clinician with sufficient expertise for an opinion on the etiology of the Veteran's hyalinizing clear cell carcinoma (malignant salivary gland neoplasm). The clinician is requested to the provide an Addendum Opinion as to whether the Veteran’s clear cell carcinoma of the base of the tongue is at least as likely as not related to his exposure to herbicides in Vietnam. For purposes of this Addendum medical opinion, the examiner should review the additional medical evidence provided by the Veteran in September 2020. See e.g., Document Review Report re: conflicting pathologies and disease behavior between his initial clear cell carcinoma and current disease, pg. 14/50. (Document type: Medical Treatment Record, Receipt Date September 1, 2020.) The examiner should note review of these additional medical records. The examiner should address the medical articles submitted on behalf of the Veteran in November 2016 and April 2017, including the following articles: Agent Orange Exposure and Cancer Incident in Korean Vietnam Veterans A Prospective Cohort Study, December 2014 (Receipt date, November 25, 2016); Cancer Incidence in Australian Vietnam Veterans, Study, 2005 (Receipt Date, November 25, 2016); Pseudo carcinoma of the Pharynx and Larynx (Receipt Date, November 25, 2016); Hyalinizing Clear Cell Carcinoma of Salivary Gland: A Review and Update, July 2013 (Receipt Date, November 25, 2016); Sonographic Anatomy of Tongue and Floor of the Mouth, 1988 (Receipt Date, November 25, 2016); Anatomy of the Larynx, trachea and bronchi, 2011 (Receipt Date, November 25, 2016); Considerations regarding the relationship between Agent Orange and Adenocarcinoma of the Parotid Gland, March 2013, N.B.K., D.O.(Receipt Date, November 25, 2016); Air Force Health Study: An Epidemiologic Investigation of Health Effects in Air Force Personnel Following Exposure to herbicides, 1987 (Receipt Date, April 11, 2017); Evaluation of Veterans for Agent Orange Exposure, September 1983 (Receipt Date, April 11, 2017). Please note review of these medical articles. The clinician should address all relevant statements in the record pertaining to the etiology of the Veteran's hyalinizing clear cell carcinoma (malignant salivary gland neoplasm), to include as due to herbicide exposure. Specifically, the clinician is invited to consider his October 2015 statement in support of his claim that during service in South Vietnam, he was in the field for prolonged period of time with subsequent prolonged exposure to defoliants and occasional spraying of the immediate area. Additionally, with prolonged field duty separated from US support units, he consumed substantial quantities of locally grown Vietnamese food all of which was subject to herbicidal contamination. See October 2015 statement (Document type, Buddy/Lay Statement, Receipt Date, October 8, 2015.) Please note review of this Buddy Lay Statement. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. If any medical opinion and/or examination is deficient in any manner, the AOJ must implement corrective procedures at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the Veteran and his attorney should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014). It further is reiterated that this matter has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.