Citation Nr: 21025210 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-17 109 DATE: April 27, 2021 ORDER Service connection for a mouth disorder, to include a chronic fungal infection, is denied. REMANDED The claim of entitlement to service connection for allergies, to include allergic rhinitis, is remanded. FINDING OF FACT The Veteran’s mouth disorder, characterized as parakeratosis and sublingual sialolith, was not manifest in service and is unrelated to service, to include exposures therein. CONCLUSION OF LAW The criteria to establish service for a mouth disorder, to include a chronic fungal infection, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1966 to June 1970, to include service in Vietnam from June 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in April 2018. A transcript is of record. The instant issues were remanded in October 2018. In February 2020, the Veteran was advised that the Veterans Law Judge who had conducted his April 2018 hearing was no longer employed by the Board. He was offered an additional hearing. In May 2020, the Veteran declined an additional hearing. In June 2020, the issues of entitlement to service connection for a mouth disorder, allergies, and a gastrointestinal disorder were remanded. Service connection for a gastrointestinal disorder was granted in October 2020. Thus, this is no longer in appellate status. The Board notes that following the issuance of the most recent supplemental statement of the case in October 2020, VA treatment records were added to the claims file. These records date to October 8 through October 19, 2020, and are not relevant to the claim decided by the Board herein. Specifically, these records include a preoperative consultation report prior to a scheduled colonoscopy and a record showing that an influenza vaccine was administered. As these records are not relevant to the claim of entitlement to service connection for a mouth disorder, the Board concludes that it may proceed with appellate consideration of these issues without prejudice to the Veteran. See 38 C.F.R. § 19.31. Service connection for a mouth disorder In his October 2008 claim, the Veteran indicated that he had an abnormal fungal growth in his mouth as a result of herbicide exposure. During his April 2018 hearing, he testified that he noticed an abnormal spot on the roof of his mouth following service, and that a VA facility performed surgery to remove it. He noted that the surgery was in approximately 2005. He indicated that it had returned. He denied having been seen during service for this condition, but indicated that the condition had been present since service. See Hearing Tr. at 7-14. Service treatment records reflect that in July 1967, the Veteran requested that a bronchial cleft cyst on his neck be removed. He was referred for an appointment with a physician. A subsequent entry indicates that the Veteran did not keep that appointment. A March 1969 entry indicates that the Veteran’s medical records had been reviewed, and that he was physically qualified for remote duty. On separation examination in June 1970, the examiner noted that the Veteran’s tonsils had been enucleated during childhood. No other abnormality of the mouth or throat was indicated. No dental defects or diseases, aside from one missing tooth, were noted. The Veteran’s June 1970 report of medical history includes an endorsement of ear, nose, or throat trouble. The examiner made various notations in the section reserved for significant or interval history, but aside from the reference to enucleated tonsils, none related to the Veteran’s mouth. Records of dental treatment during service are negative for any abnormal finding referable to the tissues in and around the Veteran’s mouth. An April 2001 report from ENT Consultants notes the Veteran’s report of a sore on the roof of his mouth. The Veteran indicated that this sore started two years previously, and that he was seen and treated with mouthwash, a gel, and a biopsy. He stated that he was eventually referred and that the sore was excised. He related that the soreness recurred every two to three months and was taking longer to heal. Examination of the oral cavity revealed a raised, bony ridge in the midline hard palate with a pinhead sized irritation in the posterior aspect. A one millimeter lesion was noted on the soft palate. Biopsy in June 2005 revealed benign squamous epithelial hyperplasia with parakeratosis. No atypia or malignancy was identified. An August 2008 VA treatment record indicates that the Veteran reported that he had a growth under his tongue, according to his dentist. An associated problem list printed in September 2009 includes salivary gland calculi. In a January 2009 statement, the Veteran indicated that an abnormal growth of fungus in his mouth began in Vietnam from 1969 to 1970. He noted that he had undergone several surgeries to remove the fungus. Records from Selma Doctors Clinic dated from November 2003 to January2009 indicate that there were no lesions or abnormal masses of the Veteran’s oral mucosa. A September 2008 VA otolaryngology clinic record indicates that the Veteran was referred for a growth on the floor of his mouth. He denied that it bothered him, and that it had been there for a long time. He reported seasonal allergies and indicated that he had a chronically itching lesion on the soft palate that had been biopsied five years previously and found to be benign. Examination revealed a white lacy superficial lesion at the hard/soft palate junction on the left, close to the midline. It appeared to be superficial. A 1cm by 1cm sialolith at the Wharton’s duct was also noted, without submandibular swelling, tenderness, or lymphadenopathy in the neck. A punch biopsy was taken of the soft palate lesion, and the sialolith was excised. Subsequently, the provider noted that pathology showed parakeratosis. The assessment was palate parakeratosis and left sublingual sialolith, status post excision/marsupialization. A subsequent September 2008 VA treatment record notes a history of a questionable nodule removed from the Veteran’s hard palate approximately 15 years previously. On VA examination in November 2019, the diagnoses were left palatal parakeratosis and left sublingual sialolith. The Veteran reported that the condition began during service in 1968. He specified that the roof of his mouth felt raw frequently while he was in Vietnam. He denied having sought treatment. He indicated a history of an occasional sore spot on the roof of his mouth every year to hear and one half, and that he treated it with hydrogen peroxide and neosporin, with flares resolving within one week. The examiner indicated that examination revealed no symptoms, and that all soft tissues were within normal limits. He noted that in September 2008 a punch biopsy revealed parakeratosis, and that a previous 2001 biopsy had revealed the same. Regarding the left sublingual sialolith, the examiner noted that the Veteran had reported swelling on the floor of his mouth for a number of years, and that sublingual swelling was noticed by a dentist in August 2008, and was referred for surgical removal. The examiner indicated that the condition had resolved without recurrence. He noted that left palatal parakeratosis was diagnosed in 2008, and that there was no diagnosis of fungal infection in the biopsy results. He indicated that he was unable to find a link in the scientific literature between exposure to herbicides and oral parakeratosis The examiner indicated that no leukoplakia or fungal lesions were noted in any area of the oral cavity including the palate, and that all structures appeared normal. He pointed out that the Veteran's medical records did not support a diagnosis of a chronic oral fungus infection, because the pathology reports did not indicate the presence of fungal organisms. He indicated that the parakeratosis from the September 2008 biopsy appeared to have resolved, noting that such was considered an epithelial reaction to trauma or autoimmune responses. He concluded that there was no indication of fungal pathogens present in the notes of the biopsy report, and that therefore, the Veteran did not appear to have a fungal infection at the time of biopsy. He concluded that the left sublingual sialolith was less likely than not caused by an event during service, reasoning that there is no indication of a sialolith being present during active service, and that the sialolith was diagnosed in 2008, 38 years after service. In September 2020, the dentist who had examined the Veteran in 2019 reviewed the record. He indicated that oral parakeratosis was diagnosed by biopsy in September 2008 and that a left sublingual sialolith was also removed at that time. He pointed out that on examination in 2019, there was no leukoplakia or fungal lesions in any area of the oral cavity, including the palate, and that all structures appeared normal. He pointed out that the Veteran’s medical records did not support a diagnosis of a chronic oral fungus infection, because the pathology reports did not indicate the presence of fungal organisms. He indicated that the parakeratosis from the 9/12/2008 biopsy appeared to have resolved, noting that such was considered an epithelial reaction to trauma or autoimmune responses. He concluded that there was no indication of fungal pathogens present in the notes of the biopsy report, and that therefore, the Veteran did not appear to have a fungal infection at the time of biopsy. He concluded that the left sublingual sialolith was less likely than not caused by an event during service, reasoning that there is no indication of a sialolith being present during active service, and that the sialolith was diagnosed in 2008, 38 years after service. He noted that he was unable to find any written evidence that a bronchial cleft cyst was removed during service, noting that the term “bronchial cleft cyst” did not appear in a literature search or his oral pathology books. He indicated that, of the two similarly named lesions he found, bronchial cyst (in the lungs) and branchial cleft cyst (lymphatics of the neck), neither lesion was cited as a cause of chronic oral fungal infection. He concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran stated that he had developed a fungus in his mouth during service in Vietnam, and that he had undergone several surgeries to remove the fungus from his mouth. He indicated that the record did not support this report and that his clinical examination in 2019 had revealed no evidence of fungal infection. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. The diseases enumerated do not include fungal infections of the mouth, parakeratosis, or sublingual sialolith. Thus, despite the Veteran’s service in Vietnam during the pertinent period, service connection on a presumptive basis for his claimed mouth disorder is not for application. The Board additionally notes that the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In this case, the Veteran has neither produced nor identified evidence establishing that his exposure to herbicides led to the current diagnoses, parakeratosis or sublingual sialolith. Moreover, the November 2019 examiner indicated that he was unable to find a link between the Veteran’s mouth disorder and herbicide exposure. To the extent that the Veteran asserts that he has a mouth condition that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnoses because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. While the Veteran maintains that he experienced symptoms during service, and that he had intermittent symptoms and treatment in the years following service, service treatment records show no relevant complaints or abnormal findings, and the Veteran denied relevant symptoms at separation. Moreover, on seeking treatment in 2001, he indicated that a sore spot on the roof of his mouth had been evident for two years, and did not report previous history or injury. Subsequent private records are also silent with respect symptoms prior to 2001. The Board views the history provided to the private practitioner in 2001 as far more reliable, as an accurate medical history is crucial to proper medical treatment. The Board also notes that, during his 2018 hearing, the Veteran indicated that he did not have symptoms regarding the roof of his mouth during service, but noticed them following separation. The VA examiner considered the documented and reported history, and ultimately concluded that the current mouth condition is not related to service. He provided a reasoned opinion based on a complete review of the Veteran’s history, interview, and examination, to include the Veteran’s history of symptoms and report of various instances treatment in the years following service. In assigning high probative value to the VA examiner’s opinion, the Board notes that he had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran’s history or that he misstated any relevant fact. The Board thus finds the VA examiner’s opinion to be of greater probative value than the Veteran’s unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons, the Board concludes that the claim of entitlement to service connection for the claimed mouth condition must be denied, as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for allergies, to include allergic rhinitis In the June 2020 remand, the Board directed that an addendum opinion be obtained regarding the etiology of the Veteran’s allergic rhinitis. It noted that while a November 2019 examiner had noted the Veteran’s statements regarding onset of allergies during service and his report of worsening over the years, in determining that the condition was not related to service, she reasoned that there was no treatment during service and no complaint at separation. The Board determined that the examiner did not provide sufficient rationale to find the Veteran not credible in his assertions. In September 2020, the 2019 VA examiner reviewed the record. She concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that the Veteran endorsed having seasonal sinusitis on an October 1966 report of medical history for entrance into active service, and that he had normal sinuses at the time of his medical examination for separation from active service, and that he denied sinusitis and hay fever on a June 1970 report of medical history for separation from active service. She acknowledged his statement that seasonal allergies developed while serving in Vietnam. She then stated: It is well known in the medical community that sinusitis is an inflammation of the lining inside the sinuses which can be acute or chronic. When the sinuses become blocked and fill with fluid, germs can grow and cause symptoms such as headache and nasal yellowish secretions. Blocked sinuses can be caused by the common cold, hay fever (allergic rhinitis) or nasal polyps. Allergic rhinitis and sinusitis are linked to each other, because allergic rhinitis causes your nose to become blocked, and in turn blocks the sinuses. The veteran claimed allergies to include allergic rhinitis is less likely caused by the lay evidence of in-service symptomatology of the claimed condition during service. Unfortunately, this discussion does not adequately explain the medical principles underlying the examiner’s conclusion. Specifically, the recitation of the general cause of sinusitis and its relationship to allergic rhinitis does not explain why the Veteran’s allergic rhinitis is not related to service. An additional examination is necessary to address this claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his allergic rhinitis, by a clinician who has not previously examined him. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant diagnoses regarding the Veteran’s allegories/allergic rhinitis. The examiner should provide an opinion regarding whether it is at least as likely as not that any such condition was incurred in, or is otherwise related to active service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Then, readjudicate the Veteran’s claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.