Citation Nr: 21008143 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-04 264 DATE: February 11, 2021 REMANDED The issue of service connection for residuals of squamous cell carcinoma of the left tongue base is remanded. The issue of an increased rating for right shoulder biceps tendonitis, currently rated as 0 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to April 1986, May 1986 to August 1995, and September 1995 to February 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of service connection for residuals of squamous cell carcinoma is remanded. At the Veteran’s January 2020 Board hearing, he testified that he was exposed to a number of chemicals which may have resulted in his disability. He expressed concerns about some of these chemicals while he was still in service. The service treatment records reflect that he listed FeNow, MEK, PD680, zinc chemicals, and epoxy. He underwent a VA examination in December 2017. The examiner was unable to render an opinion because he did not know what FeNow was. He suggested that the other listed chemicals were not carcinogens. The Veteran has since submitted safety data sheets that state that these chemicals may cause cancer. The Veteran also submitted a December 2012 correspondence in which an otolaryngologist, Mark M. Goto, M.D., stated that the Veteran’s carcinoma was at least as likely as not due to industrial chemical exposure. The December 2017 examiner did not reconcile his findings with this evidence that weighs in the Veteran’s favor. Additionally, the Board notes that the Veteran also testified that he was exposed to fuel (JP-4 and JP-5). These are not addressed in the December 2017 VA examination report. The Board finds that a new examination is warranted. Additionally, at the Veteran’s January 2020 Board hearing, he testified that he was stationed at New River, Camp Lejeune area. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune (hereinafter contaminated water), even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a Veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. §§ 3.307, 3.309. This presumption may be rebutted by affirmative evidence to the contrary. Id. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Id. Squamous cell carcinoma of the left tongue base is not one of the diseases listed for which presumptive service connection based on exposure to contaminated water at Camp Lejeune and/or Marine Corps Air Station New River may be granted. The Veteran’s military personnel records confirm that he was stationed at Marine Corps Air Station New River in May 1986. Accordingly, exposure to contaminated water is accepted; however, as mentioned, squamous cell carcinoma is not one of the diseases listed for which presumptive service connection based on exposure to contaminated water at Camp Lejeune and/or Marine Corps Air Station New River may be granted pursuant to 38 C.F.R. §§ 3.307, 3.309. As such, in order to warrant service connection, competent evidence linking the condition to service is necessary. See Combee, 34 F.3d at 1042 (Fed. Cir. 1994). The Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran’s disability. Specifically, it is necessary to determine whether it is at least as likely as not that his disability is due to exposure to contaminated water at Marine Corps Air Station New River. Additionally, the nature of the disability should be identified. The disability is currently characterized as squamous cell carcinoma. The Veteran testified that it was originally diagnosed as squamous cell carcinoma on the base of his tongue but that cancer of the digestive system has been diagnosed. The issue of an increased rating for right shoulder biceps tendonitis, currently rated as 0 percent disabling, is remanded. The Veteran’s most recent VA examination took place in February 2014. Although a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). At the Veteran’s January 2020 Board hearing, he testified that his shoulder has been locking up, and that his arm strength has gotten weaker (to the point where he is dropping things). Consequently, the Board finds that a new examination is warranted to determine the current severity of the disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his squamous cell carcinoma of the left tongue base. 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: (a) What areas of the body are affected by the Veteran’s squamous cell carcinoma? (b) Is the Veteran’s squamous cell carcinoma at least as likely as not related to service, including exposure to FeNow, MEK, PD680, zinc chemicals, epoxy, and gasolines (JP-4 and JP-5). The examiner must reconcile his/her findings with the December 2012 opinion of Dr. Goto and the data sheets submitted in May 2018 that reflect that these chemicals may cause cancer. (c) Is the Veteran’s squamous cell carcinoma at least as likely as not related to contaminants in the water during service at Marine Corps Air Station New River? The examiner is advised that a negative opinion cannot be based solely on the fact that the squamous cell carcinoma of the left tongue base is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune and/or Marine Corps Air Station New River. Provide a rationale to support the opinion(s). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder biceps tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.