Citation Nr: 21002676 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-38 084 DATE: January 14, 2021 REMANDED Entitlement to service connection for a skin disability (claimed as jungle rot) is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to September 1971 with service in the Republic of Vietnam. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In an October 2019 decision, the Board denied the Veteran’s claim for entitlement to increased (staged) ratings for his service-connected ischemic heart disease (IHD) for the appeal period prior to March 21, 2019 and granted an increased 30 percent rating for IHD effective March 21, 2019. The Board’s grant of an increased 30 percent rating from March 21, 2019 for IHD was effectuated in an August 2020 rating decision. The Veteran has not appealed the evaluation or effective date assigned and the issue, therefore, is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). In addition to the above determinations, the Board remanded the claims for entitlement to service connection for a skin disability and tinnitus for additional development. The case has been returned to the Board for further appellate review. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a skin disability (claimed as jungle rot) is remanded. The Veteran contends that his current skin disability is related to his in-service treatment for jungle rot while in Vietnam. He also contends that his current skin condition (i.e. skin cancer and pre-cancerous growths) developed as a result of excessive sun exposure during his service in Vietnam. See Hearing Transcript at 8-11 (March 2019). For reasons discussed below, the Board finds that remand is necessary. The Veteran was afforded a VA skin diseases examination in December 2019 and the examiner noted that current clinical findings were consistent with diagnoses of basal cell carcinoma (BCC) of the face, cheeks, forehead, right posterior auricular regions, treated without recurrence to date, as well as squamous cell carcinoma (SCC) of the left proximal forearm, treated without recurrence or significant scarring. At the examination, the Veteran reported a history of smoking tobacco (half a pack per day) from the age of 17 or 18 years old but indicated that he quit in 1969. He also reported that he began drinking alcohol at age 20 and denied he was treated for alcohol use; he stated that he currently drinks 2 alcoholic drinks daily. He indicated that he had been employed in government work in law enforcement for over a decade and had been raising dairy goats with his wife for the past 10 years. The Veteran reported that he was first treated for skin cancer in 1998. The examiner opined that the Veteran’s skin condition was less likely than not related to an in-service injury, event or disease related to his Vietnam service; less likely than not to have manifested within one year of service separation; and was less likely than not related to in-service treatment of jungle rot with Penicillin. The examiner further indicated that the Veteran does not have a diagnosis of any skin disability, including jungle rot, that is at least as likely as not incurred in or caused by service. The examiner stated that there is no objective evidence on examination indicating that the Veteran currently has jungle rot in the bilateral lower extremities. Therefore, the Veteran does not have a current diagnosis of jungle rot. Moreover, the Veteran’s skin cancers are not physiologically related to jungle rot or warm water immersion of the feet. In support of these medical opinions, the examiner indicated that there is no evidence of record containing the evaluation, diagnosis, or treatment of a chronic skin condition or for skin cancer during active military service or within one year of separation from service. In addition, examinations of the Veteran’s skin conducted at enlistment and separation were noted to be normal. The examiner stated the Veteran was diagnosed with skin cancer decades following separation from service and indicated that even though the Veteran recalls the onset of skin cancer in 1998, there is no evidence of record documenting the evaluation, diagnosis, or treatment of skin cancer until 2013. Finally, the examiner identified several of the Veteran’s risk factors for the development of BCC and SCC such as his increasing age, being a Non-Hispanic white male with fair skin color, ex-smoker, alcohol consumer and recurrent episodes of BCC lesions documented since 2013. She further stated that the Veteran has had sun exposure over many years compared to a relatively short period of exposure (12 months) during active service. The examination report includes a list of online medical references, studies and literature review upon which the examiner relied in formulating her opinion. The Board finds that the VA medical opinion is inadequate because it does not reflect consideration of the Veteran’s lay statements, including his hearing testimony regarding the extent of his in-service and post-service sun exposure nor does it accurately apply the cited studies and medical literature to the facts in this case. For instance, during his Board hearing, the Veteran testified that he did not use sunblock during service, did not always wear a shirt in the field (and provided photographs of himself shirtless in Vietnam), and experienced sunburns and blistering during service as a result of regular sun exposure in Vietnam. The Veteran also testified that following service, he has worn sunblock as well as hats and protective clothing that shield him from the sun. See Hearing Transcript at 8-10 (March 2019). The VA examiner referenced an internet article which states that “Exposure to UV radiation from sunlight is the most important environmental cause of BCC, and most risk factors relate directly to a person's sun exposure habits or susceptibility to solar radiation. These risk factors include having fair skin, light-colored eyes, …older age, childhood freckling, and an increased number of past sunburns.” Hence, it appears that the VA examiner failed to consider whether the Veteran’s reported in-service sunburns with blistering were a risk factor in the development of his BCC. The examiner also included a citation to epidemiologic studies that indicate cumulative sun exposure (principally UVB radiation) is the most important environmental cause of cutaneous squamous cell carcinoma (cSCC) in contrast to intense intermittent sun exposure (e.g., sunburn, childhood exposure) which is the most important risk factor for BCC and melanoma. The Board notes that this study seems to contradict the VA examiner’s conclusion that the Veteran’s “relatively short exposure period” to sun UV radiation during service was not likely etiologically related to the development of the Veteran’s SCC and BCC skin cancer. Furthermore, the examiner cited a study that did not support her conclusions that the Veteran’s approximately 3-year history of smoking and his consumption of 2 alcoholic drinks per day were considered risk factors in the development of his BCC. Although the study found that smoking increases the risk of SCC and a case-controlled study found an increased risk of BCC in female smokers compared with males, a meta-analysis failed to find a significant association between BCC and smoking. The study also found that other lifestyle factors such as alcohol consumption possibly affected the risk for BCC. In sum, the Board finds the VA examiner's opinions were not based on a full consideration of the facts and were not supported by sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Here, the VA examiner attempted to support her medical opinions with citations to medical studies and literature which largely contradicted her conclusions as well as the particular facts in this case. An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Based on the above, the Board finds that the December 2019 VA examination is inadequate for adjudication purposes. As such, remand is necessary to obtain an addendum medical opinion that fully discusses the Veteran’s lay statements and accurately represents and applies any relevant medical literature/studies to the specific facts in the Veteran’s case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends that his tinnitus is related to his service. Specifically, the Veteran argues that his tinnitus, had its onset shortly after service and was caused by noise exposure related to his duties as a motor transport driver assigned to artillery and heavy mortar batteries during his deployment in Vietnam. See VA Form 21-4138 (Veteran’s Statement) (October 2013); Hearing Transcript at 5-7 (March 2019). For reasons discussed below, the Board finds that remand is necessary. The Veteran was afforded a VA examination in December 2019. He reported that he had tinnitus for a “long time” and that his exposure to artillery during his service in Vietnam had triggered the onset of tinnitus. The Veteran specifically reported in-service noise exposure to machine gun fire, howitzers and mortars without the benefit of hearing protection. The Veteran also reported post-service occupational noise exposure from cutting machines and saws at a machine shop for one year following service and assembly line machine noise at General Motors for 3 to 4 years. He also reported occupational noise exposure as a patrolman and detective with firearms training with the Arizona Department of Public Safety for 21 years. The Veteran indicated that he wore ear protection in all of his post-service occupations and denied any post-service recreational noise exposure. However, after considering the above, the VA examiner declined to provide an etiological opinion. She explained that based on the Veteran’s reported history of significant noise exposure both during and after military service, it was not possible to determine whether tinnitus is related to military noise exposure without resorting to mere speculation. The examiner provided no further rationale as to why the opinion could not be rendered without resorting to speculation. The Board finds that December 2019 VA medical opinion is inadequate because it does not consider the Veteran’s statement that his exposure to artillery during service triggered his tinnitus. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). Additionally, the medical opinion is inadequate because the examiner failed to articulate a well-reasoned explanation for her conclusion that no opinion is possible without resort to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Given these deficiencies, the Board finds that remand is necessary to obtain an addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s skin cancer. The entire claims file, to include a copy of this remand, should be made available to and reviewed by the clinician. The examiner must opine on whether the Veteran’s skin cancer, to include squamous cell carcinoma and basal cell carcinoma, at least as likely as not (a 50 percent or greater probability): (a.) began during active service; or (b.) manifested within one year after discharge from service; or (c.) was noted during service with continuity of the same symptomatology since service; or (d.) is related to an in-service injury, event, or disease, to include sunburns and blistering caused by regular sun exposure in Vietnam. The medical opinion should also reflect consideration of the Veteran's lay assertions, particularly his testimony during the March 2019 Board hearing wherein he asserted that his skin cancer is related to his in-service sunburns with blistering caused by frequent sun exposure in Vietnam without the benefit of sunscreen. The medical opinion should also address the distinction, if any, between the risk factors in the development of basal cell carcinoma as opposed to squamous cell carcinoma. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s tinnitus. The entire claims file, to include a copy of this remand, should be made available to and reviewed by the clinician. The examiner must opine on whether it is at least as likely as not (a 50 percent or greater probability), that the Veteran’s tinnitus: (a.) began during active service; or (b.) manifested within one year after discharge from service; or (c.) was noted during service with continuity of the same symptomatology since service; or (d.) is related to an in-service injury, event, or disease, including noise exposure from related to the Veteran’s Vietnam service, including exposure to machine gun fire, artillery, and mortars while serving as a motor vehicle operator assigned to artillery and heavy mortar batteries. The medical opinion should consider the Veteran’s assertions and identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.