Citation Nr: 21068542 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 20-15 028 DATE: November 10, 2021 ORDER Entitlement to service connection for residuals of adenocarcinoma, left parotid gland, to include as due to exposure to herbicide agents, is granted. REMANDED Entitlement to service connection for sarcoidosis, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his adenocarcinoma, left parotid gland, including residuals is at least as likely as not related to his military service, to include as due to exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for adenocarcinoma, left parotid gland, including residuals, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including certain enumerated cancers, 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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has asserted that his adenocarcinoma, left parotid gland, and sarcoidosis are due to exposure to herbicide agents. The Veteran was exposed to herbicides during his Vietnam service. However, these disabilities are not listed in the enumerated disorders presumed due to exposure to herbicide agents under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran may still establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for residuals of adenocarcinoma, left parotid gland, to include as due to exposure to herbicide agents As noted above, the Veteran that his adenocarcinoma of the left parotid gland is due to his exposure to herbicide agents while stationed in the Republic of Vietnam. The Board concludes that the Veteran has a current disability that is related to exposure to herbicide agents in the Republic of Vietnam. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). December 2017 private treatment notes show the Veteran has a current diagnosis of adenocarcinoma of the parotid gland, including residuals. The Veteran underwent radiation treatment and parotidectomy in October 2017. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions only in favor the claim. The evidence in favor of the claim includes the December 2017 medical opinion of the Veteran's treating oncologist, S.B.H., M.D. In that opinion, Dr. S.B.H. opined that it is reasonable to link the Veteran's current parotid cancer with his Agent Orange exposure. As rationale, the oncologist noted that the Veteran's particular form of cancer is particularly rare, and that a 2014 study of Korean veterans showed a marked increase in salivary gland cancer incident among veterans with high Agent Orange exposure. The oncologist noted that the rarity of salivary gland cancers would likely limit the availability of any better-quality data than this survey. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current residuals of adenocarcinoma of the parotid gland are related to his active service to include as due to exposure to herbicide agents while serving in the Republic of Vietnam. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for adenocarcinoma of the parotid gland, including residuals, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). REASONS FOR REMAND 2. Entitlement to service connection for sarcoidosis, to include as due to exposure to herbicide agents, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sarcoidosis because no VA examiner has opined whether the Veteran's sarcoidosis is the result of exposure to herbicide agents while serving in the Republic of Vietnam. Furthermore, no opinion has been rendered regarding the nature, etiology, or onset of the Veteran's sarcoidosis. The Board notes that the Veteran has submitted treatment records dating back to 1997 related to his sarcoidosis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his sarcoidosis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the sarcoidosis at least as likely as not related to service, including as due to exposure to herbicide agents in the Republic of Vietnam? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the sarcoidosis (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is sarcoidosis at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the sarcoidosis is not on the list of diseases that are presumptively associated with exposure to herbicide agents. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.