Citation Nr: 21025941 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 11-33 386 DATE: April 29, 2021 ORDER Entitlement to service connection for bilateral upper extremity peripheral neuropathy, including as secondary to service-connected diabetes, is granted. Entitlement to service connection for squamous cell carcinoma (claimed as throat cancer), to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for bilateral perforated eardrums is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to herbicides during his military service. 2. The Veteran’s peripheral neuropathy of the upper extremities is related to his service-connected type II diabetes mellitus. 3. The Veteran had an active case of squamous cell carcinoma that was resolved with treatment and now has residuals of such. 4. The Veteran’s squamous cell carcinoma did not manifest during service or within one year of separation and is not otherwise related to his military service, including herbicide exposure therein. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the upper extremities was aggravated beyond its natural progression by his service-connected type II diabetes mellitus. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.310. 2. Squamous cell carcinoma was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from March 1962 to March 1966, including service in the Republic of Vietnam. This matter is on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, these matters were remanded for further development. Since that time, the claims have been returned to the Board for appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2015). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. A malignant tumor is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including a malignant tumor, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations 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 (d)(6)(i). Section 3.307(d)(6) also provides that 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. 38 C.F.R. § 3.307 (d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral upper extremity peripheral neuropathy, including as secondary to service-connected diabetes, is granted. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for peripheral neuropathy of the upper extremities. In a November 2018 rating decision, the RO granted service connection for diabetes mellitus type II on a presumptive basis (due to herbicide exposure). The Veteran’s treatment records note that he has a history of neuropathy and was evaluated and treated for neuropathy of his hands and feet. See July 2019 treatment record. See also June 2019 treatment record. VA treatment records show that the Veteran has been diagnosed with paraneoplastic neuropathy. The physician indicated it is likely due to chemotherapy. See November 2015 VA treatment record. In a July 2018 VA examination, the examiner noted that the Veteran was diagnosed with diabetic peripheral neuropathy but not upper extremity diabetic peripheral neuropathy. Therefore, during the examination, he was not found to have any neuropathic symptoms of his upper extremities. In an October 2019 VA examination, the Veteran reported having numbness and tingling in his hands that resolved when he shook his hands. The examiner indicated the symptoms were attributable to a peripheral nerve condition, and he was found to have mild intermittent pain and paresthesias and/or dysesthesias of the right upper extremity. However, the VA examiner indicated there was no objective evidence during the examination that showed he had diabetic peripheral neuropathy. Rather, he found the Veteran’s symptoms were related to the use of chemotherapy, diagnosed as paraneoplastic neuropathy. The examiner opined it is less likely than not the Veteran’s condition is due to, the result of, or worsened beyond its normal progression by his service-connected diabetes. He explained that the Veteran’s description of his symptoms that present only when driving and relieved by shaking his hands is not consistent with prolonged, chronic, or neuropathic nerve damage. Notably, as mentioned in the Board’s remand, EMG testing was not performed and details about the reason why were not included. The Veteran was later afforded a VA examination in January 2021. The Veteran noted the diagnosis of paraneoplastic neuromyopathy and neuropathy of the upper and lower extremities. The examiner indicated that the Veteran’s neuropathy was likely caused by the chemotherapy used to treat his neck tumor. Upon examination, the Veteran was found to have neuropathy presented by bilateral pain, paresthesias and/or dysesthesias, and numbness. The examiner explained that EMG testing was not performed, or necessary as diabetic neuropathy can be diagnosed in an appropriate clinical setting based on the medical history and characteristic of symptoms. Moreover, he stated that EMG testing is rarely required to diagnose the condition and was impossible in this case as it is not an approved test for the VA examination. While the examiner did not diagnose the Veteran with diabetic neuropathy or find that his service-connected diabetes caused his neuropathy, he did opine that his current condition was aggravated by his service-connected disability. Referencing medical literature, the examiner noted that, while the Veteran’s diabetes is well controlled by his diet, the microvascular changes that occur with diabetes are more likely than not to be a contributing factor in the progression of the Veteran’s diagnosed neuropathy. While the July 2018 and October 2019 VA examiners indicated the Veteran did not have a neuropathy disorder, the evidence of record shows otherwise. See VA treatment records. See also January 2021 VA examination. Additionally, the July 2018 and October 2019 VA examiners did not address why EMG testing was not necessary in the Veteran’s case. However, the January 2021 VA examiner noted the reason why EMG testing was not necessary and provided an adequate rationale supported by medical literature to support his opinion. The Board finds that the January 2021 VA examination is most probative in value and the evidence of record is at least in equipoise as to whether the Veteran’s service-connected diabetes aggravated his diagnosed upper extremity neuropathy. Based on all of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for neuropathy of the upper extremities is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. Entitlement to service connection for squamous cell carcinoma (claimed as throat cancer), to include as due to herbicide exposure, is denied. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes the Veteran is not entitled to service connection for squamous cell carcinoma. The Board notes the Veteran did serve in the Republic of Vietnam. Thus, he is presumed to have been exposed to herbicide agents during his military service. However, squamous cell carcinoma is not among the diseases listed as presumptively associated with herbicide exposure. Thus, the Veteran is not entitled to service connection on a presumptive basis due to herbicide exposure. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, as noted above, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran meets the threshold requirement for the chronic disease presumption as his condition is among the qualifying diseases. See 38 C.F.R. § 3.309(a). The Board finds the Veteran’s squamous cell carcinoma did not manifest in service or for many years thereafter. The record reflects that he was first diagnosed with squamous cell carcinoma in 2008. The Veteran has not asserted that his symptoms began in service, nor has he argued that his symptoms have continued since service. Rather, it appears the Veteran has claimed that his presumed herbicide exposure contributed to the development of his squamous cell carcinoma. Moreover, the Veteran’s service treatment records do not document any complaints, treatment, or diagnosis of squamous cell carcinoma, or symptoms with respect to the illness. During a March 1966 examination, the Veteran’s relevant body systems, including the mouth and throat, were found to be normal. Thus, the lay and medical evidence do not show that squamous cell carcinoma manifested in service or that there is any disease, injury, or event other than herbicide exposure to which his current disorder could be related. There is also no lay or medical evidence showing that his disorder manifested within one year of his military service. Post service records show the squamous cell carcinoma was found in the Veteran’s tongue and back of the throat. See July 2008 treatment records. Subsequent records show treatment of the illness. See August 2008 treatment records. The Veteran was afforded a VA examination in connection with his claim in October 2019. The examiner found the Veteran’s cancer was not active, but he had residuals which included loss of hair on the neck, reduced saliva production, and reduced ability to taste. The examiner opined that it is less likely than not the Veteran’s condition was related to his herbicide exposure in Vietnam. He noted that medical records do not contain a nexus between the Veteran’s cancer and herbicide exposure, and the type of cancer (squamous cell carcinoma) is not associated with Agent Orange exposure. Rather, he stated that the Veteran is a documented former smoker and user of smokeless tobacco. Therefore, the use of the products is highly associated with the Veteran’s condition. There is no medical opinion of record linking the Veteran’s squamous cell carcinoma to his military service. The Board has considered the Veteran’s assertion that his squamous cell carcinoma is related to his in-service herbicide exposure. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of squamous cell carcinoma, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder following the in-service exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Nevertheless, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the October 2019 VA examiner is of greater probative weight than the Veteran’s more general lay assertions. The examiner reviewed and considered the evidence of record, including the Veteran’s statements, and provided a medical opinion with a supporting rationale relying on medical training, knowledge, and expertise. Based on the foregoing, the Board finds the evidence shows the squamous cell carcinoma did not manifest in service or for many years thereafter and is not otherwise related to his military service, including herbicide exposure. The preponderance of the competent, credible, and probative evidence weighs against the Veteran’s claim. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes the Veteran is not entitled to service connection for squamous cell carcinoma. REASONS FOR REMAND Entitlement to service connection for bilateral perforated eardrums is remanded. In October 2019, a VA examiner indicated the Veteran had a diagnosis of tympanic membrane perforation along with a history of recurrent ear infections. Noting the Veteran’s entrance and separation examinations reveal the Veteran’s ears were normal and service treatment records lack complaints of an ear disorder, the examiner opined that it is less likely than not the Veteran’s claimed disorder is related to his military service. He also opined that the ear disorder clearly and unmistakably existed prior to his service but was not aggravated beyond natural progression by service. Again, he based his opinion on the lack of complaints and treatment in service, as well as, military examinations that note the Veteran’s ears were normal. In the March 2019 Board remand, the VA examiner was instructed to address and consider the Veteran’s March 1962 report of medical history in which he indicated he experienced running ears. However, a review of the October 2019 VA examination report reveals this fact was not mentioned or considered when the opinion was formed. Therefore, remand is necessary to obtain an additional VA examination and opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral perforated eardrum disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner is also specifically instructed to address and consider the Veteran’s reported history of running ears in his March 1962 entrance report of medical history. The examiner should opine as to whether the Veteran’s current bilateral perforated eardrums clearly and unmistakably preexisted his period of active service. (The term “clear and unmistakable” means that the evidence is undebatable.) If so, he or she should state whether there was an increase in the severity of the preexisting disorder during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the disorder did not clearly and unmistakably preexist the Veteran’s service, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran has current bilateral perforated eardrum disorder that manifested during a period of active or is otherwise is causally or etiologically related to a period of active service, to include any symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.