Citation Nr: 21003924 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-62 614 DATE: January 25, 2021 ORDER Entitlement to a compensable rating for trichuriasis is denied. Entitlement to service connection for right tonsil carcinoma claimed as cancer and tonsils lesions of oral phalanx is denied. REMANDED Entitlement to service connection for an anxiety disorder is remanded. Whether new and material evidence has been received to reopen a service connection claim for arterial hypertension. FINDINGS OF FACT 1. No residuals or symptoms of trichuriasis are shown. 2. The Veteran’s right tonsil carcinoma claimed as cancer and tonsils lesions of oral phalanx was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable evaluation for trichuriasis have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7329-7324. 2. The criteria for entitlement to service connection for right tonsil carcinoma claimed as cancer and tonsils lesions of oral phalanx have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1965 to June 1967. This case comes to the Board of Veterans’ Appeals from a May 2013 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, granted service connection for trichuriasis, assigning a 0 percent rating, effective March 14, 2012; and denied service connection for right tonsil carcinoma, an anxiety disorder, and arterial hypertension and chest pain, finding that new and material evidence had not been receive to reopen the claim. Although the service connection claim for anxiety disorder and right tonsil carcinoma was previously denied in June 1998 and June 2002 rating decisions, respectively, relevant service treatment records were later added to the file in August 2006, which do not appear to have been considered by the AOJ in its prior rating decisions in June 1998 and June 2002. Thus, pursuant to 38 C.F.R. § 3.156 (c), VA will reconsider the claim of service connection for anxiety disorder and right tonsil carcinoma claimed as cancer and tonsils lesions of oral phalanx on the merits without addressing any threshold issue of whether new and material evidence has been received. The Board remanded the case for additional development in September 2019. The directives of the Board’s remand having been substantially complied with (other than the issue of service connection for anxiety disorder, as explained in more detail below) the case is now returned for appellate review. On remand and in a September 2020 rating decision, the AOJ granted service connection for aortic stenosis (due to rheumatic fever recurrence), status post aortic valve replacement, claimed as chest pain of unclear nature was granted with an evaluation of 30 percent effective December 26, 2018 along with service connection for associated scars. Thus, that aspect of the Veteran’s appeal is no longer before the Board on appeal. 1. Entitlement to a compensable rating for trichuriasis The Veteran’s service-connected trichuriasis is currently assigned a noncompensable rating by analogy under 38 C.F.R. § 4.114, Diagnostic Code 7399-7324. The Veteran seeks an increased rating because he states that he was hospitalized for his gastrointestinal infection at Presidio Hospital in San Francisco. See, e.g., June 2013 notice of disagreement. Diagnostic Code 7324, Distomiasis, intestinal or hepatic, provides a noncompensable rating for mild or no symptoms, 10 percent for symptoms moderate in degree, and 30 percent for severe symptoms. See 38 C.F.R. § 4.114. The service treatment records show that the Veteran was hospitalized with complaints of diarrhea from July 1966 to August 1966 at Letterman General Hospital in San Francisco. He was diagnosed with trichuris trichiura in August 1966 and was discharged as being asymptomatic. He also was diagnosed with schistosomiasis gastrointestinal infestation, which was treated but not cured. The September 1966 separation examination notes that the Veteran’s schistosomiasis gastrointestinal infestation was treated, not cured, and not disabling. After service, the Veteran underwent a VA examination in July 2009 as part of a June 2009 service connection claim for schistosomiasis. The July 2009 VA examination report shows the Veteran had been training in several rivers while stationed in Fort Polk, Louisiana and in Colorado. After finishing the training, he collapsed while stationed in California and was treated in the hospital for several months. He was not aware of a diagnosis. He complained of having frequent episodes of diarrhea (about three to four episodes per week) since active service. He also had abdominal pain about three to four times per week, occasional dark stools, and bright red blood after defecating (noting that he had hemorrhoids). There was no current treatment. There were no signs of anemia or any significant weight loss or malnutrition. There also was no abdominal tenderness. There was globose abdomen and external hemorrhoids. The pathology report was negative. There was no ova or parasites found on wet prep. The Veteran was diagnosed with schistosomiasis, resolved. After service connection for schistosomiasis was denied in a November 2009 rating decision, the Veteran filed a service connection claim for trichuriasis in March 2012. An October 2012 VA examination report shows the Veteran was diagnosed with schistosomiasis and trichuris trichuria in 1966 while on active duty. The Veteran reported that he was treated while in service but after discharge had remained with the infection. He reported that he had suffered from abdominal pain all of his life despite treatment. He noted that he had not received treatment again for the infectious condition. It was noted that continuous medication was not required for control of the Veteran’s intestinal conditions; and that the Veteran had not had any surgical treatment for it. The Veteran did not have any signs or symptoms attributed to his condition. He did not have any episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. There was no weight-loss attributable to the infectious intestinal condition. He also did not have any malnutrition, serious complications, or other general health effects attributable to the intestinal condition. It was noted that the July 2009 wet prep found no ova or parasites. An October 2012 wet prep also noted that there was no ova or parasites found in wet prep. It was found that the Veteran’s infectious internal condition did not impact his ability to work. It was noted that the claimed condition was related to service, as there was evidence of treatment without eradication of infection while on service. The AOJ granted service connection for trichuriasis in a May 2013 rating decision and assigned a 0 percent rating based on the Veteran having mild or no symptoms. The Veteran’s representative asserted in a July 2018 statement that the May 2013 examination was five years old and that the Veteran should have a new examination conducted by a specialist. After the case was remanded by the Board, the Veteran underwent another VA examination in October 2019. The October 2019 VA examination report shows that there was no evidence of active, acute, or chronic trichuriasis per examination. There also was no evidence of symptoms, residuals, or functional impairments attributable to the past parasitic infection which was treated and resolved. Therefore, there were no effects on occupational functioning and/ or activities of daily living. The available service treatment records note that the Veteran was treated for trichuriasis while on active duty. This was found to be an acute and transitory infection that was treated with very good response, and resolved without complications, sequelae, or residuals. The examiner noted that the available laboratory workup did not have any evidence of active disease. There was no presence of ova or parasites and no evidence of persistent eosinophils. The examiner indicated that the antibodies levels remained positive despite previous treatments because this was a type of immunological memory, which meant that the individual had the disease in the past and the body developed a response against it. The examiner noted that it was very well known that the antibodies can remain positive for years, without having active disease. The Veteran had no signs or symptoms attributable to any infectious intestinal conditions. There were no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. There was no weight loss or malnutrition, complications, and other general health effects. As noted, the Veteran’s representative requested that a specialist perform the examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the most recent VA examiner. In other words, the Veteran has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the October 2019 VA examination in adjudicating the Veteran's currently appealed claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A (d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his representative has identified or submitted any evidence or argument that the October 2019 VA examiner was not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide competent opinions concerning the current nature of the disability at issue. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291-92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners. It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway, supra. The October 2019 VA examination report notes that it was signed by a physician in internal medicine and geriatrics. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions, whether that is a medical doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Here, there is no competent evidence to suggest that the VA examiner who performed the examination was not qualified to perform the examination and opinion. The examiner reviewed the Veteran’s pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the Board finds no prejudice in considering the October 2019 examination and opinion and according it significant probative weight. As shown above, no residuals of the Veteran’s parasitic infection in service are shown at any time during the period on appeal. While the Veteran stated that he had complaints of stomach pain and had previously stated in 2009 that he had frequent diarrhea, there is no evidence of active parasitic infection, or residuals thereof, during the period on appeal. Therefore, without any evidence of any symptoms or residuals, the Board finds that the preponderance of the evidence is against finding that the criteria for a compensable rating have been met or approximated, as the present noncompensable rating under Diagnostic Code 7324 contemplates “mild or no symptoms.” The Board has considered whether the Veteran would be entitled to a compensable rating under any other diagnostic code. In that regard, Diagnostic Code 6320 specifically provides for rating “parasitic diseases not otherwise specified” at 100 percent during active disease, and thereafter to rate residuals, such as spleen or liver damage, under the appropriate diagnostic code. See 38 C.F.R. § 4.88b. Here, however, no residuals are shown. Therefore, no entitlement to a higher rating would be available under that diagnostic code. The Board concludes that entitlement to a compensable evaluation for parasitic infection is not warranted. Service Connection 2. Entitlement to service connection for right tonsil carcinoma claimed as cancer and tonsils lesions of oral phalanx The Veteran contends that his right tonsil carcinoma is related to his military service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of right tonsil carcinoma as evidenced by a February 2001 treatment record. Malignant tumors are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with a right tonsil mass (later diagnosed as carcinoma) until July 2000, 33 years after his separation from service and 32 years outside of the applicable presumptive period. The Veteran has not argued that he has continued to have any symptoms attributable to right tonsil carcinoma since service. Service connection for carcinoma of the right tonsil may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s carcinoma of the right tonsil and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The service treatment records are negative for any findings of tonsil cancer. However, the Veteran was treated for a sore throat on multiple occasions in service. A July 1966 clinical record shows the Veteran had deep crypts present above or within both tonsils. There also were small gray-white patches on the right tonsil. On the wall of the oropharynx, there were three erythematous polypoid masses. The impression was lesions of oral pharynx of unknown etiology. An October 2019 VA examination report shows that the Veteran was diagnosed with malignant right tonsillar carcinoma in July 2000 with no recurrence. The examiner found that it was less likely than not related to service, as the Veteran was never in Vietnam and there was no exposure to Agent Orange in service. The examiner noted that the Veteran had intoxication while on active duty; but no data was available to support carcinogenic substances. The established precursors for oral cancers were tobacco and alcohol abuse. Therefore, the examiner found that the claimed tonsillar carcinoma was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. A March 2020 supplemental opinion was provided as to whether the Veteran’s right tonsil carcinoma was related to the in-service findings of complaints of sore throat and deep crypts present above or within both tonsils, small gray-white patches on the right tonsil; and or the erythematous polypoid masses on the wall of the oropharynx, with an impression of lesions of oral pharynx of unknown etiology. The examiner found that the timeline for development of a malignant lesion from 1966 to 2000 was not feasible, as head and neck tumors were generally slow growing but would manifest in four to six months. The examiner noted that as previously stated the Veteran was never in Vietnam; thus, there was no exposure to Agent Orange, a known and established precursor to head and neck cancer. The Veteran had intoxication while on active duty, but no data was available to support carcinogenic substances. Therefore, the examiner found that the claimed tonsillar lesions and carcinoma were less likely than not incurred in service. While the Veteran believes his right tonsil carcinoma is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the evidence of record, service connection for carcinoma of the right tonsil is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an anxiety disorder is remanded. The Board remanded the service connection claim for an anxiety disorder in September 2019 so that an examination and medical opinion could be provided as to its etiology. Specifically, it was noted that the Veteran had been found to have an anxiety reaction in service in July 1966; and a post-service VA examination in March 1998 showed a diagnosis of an anxiety disorder. An October 2019 VA examination was provided in which it was found that the Veteran’s anxiety disorder was less likely than not caused by in-service injury, event, or illness. The rationale was based, in part, on that the record was silent for any treatment for anxiety/ depression until 2012, 45 years after the military. As noted, however, the Veteran was shown as having an anxiety disorder in 1998, which is 31 years after service. As the opinion provided in October 2019 was, in part, based on inaccurate information, a supplemental opinion should be provided. 2. Whether new and material evidence has been received to reopen a service connection claim for arterial hypertension Because a decision on the remanded issue of service connection for an anxiety disorder could significantly impact a decision on the issue of service connection for arterial hypertension and chest pain, the issues are inextricably intertwined. While a negative medical opinion regarding the relationship between anxiety disorder and hypertension was provided in October 2019, given that any opinion addressing the etiology of the anxiety disorder could potentially impact the issue of service connection for arterial hypertencion, a remand of the claims for the issue of service connection for arterial hypertension is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s anxiety disorder is at least as likely as not related to the in-service findings of an anxiety reaction. Please consider the post-service evidence of an anxiety disorder diagnosis in March 1998. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.