Citation Nr: 22012437 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-02 274 DATE: March 3, 2022 ORDER Entitlement to service connection for parotid gland cancer is denied. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity, claimed as peripheral neuropathy, is denied. REMANDED Entitlement to service connection for a condition claimed as left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for a condition claimed as right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for a condition claimed as left lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. The Veteran's parotid gland cancer is not related to service, to include exposure to herbicide agents. 2. The Veteran's right upper extremity disorder has been diagnosed as carpal tunnel syndrome, which is not related to service to include exposure to herbicide agents or is otherwise due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for parotid gland cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for carpal tunnel syndrome of the right upper extremity, claimed as peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971, to include service in Vietnam. The claims are on appeal from a June 2013 rating decision. Previously, the Board denied the claims on appeal in a July 2020 decision. The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court). In May 2021, the Court, as requested in a Joint Motion for Remand (JMR) vacated the Board's July 2020 decision and remand the claims to the Board. In August 2021, the Board remanded the claims for further development. With respect to service connection for parotid gland cancer and for a right upper extremity disorder, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Relevant to this case, as the Veteran served in the Republic of Vietnam, he is presumed to have been exposed to tactical herbicides. 38 C.F.R. § 3.307(a)(6). Certain diseases, including early-onset peripheral neuropathy, are presumed to be to related to tactical herbicide exposure. 38 C.F.R. §§ 3.309(e). However, early-onset peripheral neuropathy must manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active duty. 38 C.F.R. § 3.307(a)(6)(ii). Even where a condition is not presumptively related to herbicide exposure, service connection is still available on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service Connection for Parotid Gland Cancer The record reflects that the Veteran was diagnosed in 1999 with mucoepidermoid carcinoma of the right superficial parotid, for which he underwent excision of the tumor. In July 2012 he filed service connection for the condition and claimed that it was due to his exposure to Agent Orange. Following the Board's prior August 2021 remand, a VA examination was provided in December 2021 at which the Veteran related the history of his condition. Upon examination, the examiner noted that the cancer was not currently active and found "no additional diagnoses warranted for residuals of the cancer." As to a connection between the original tumor and the Veteran's service, the examiner opined that the evidence "supports that the Veteran never had anything that even remotely resembled or could have resembled parotid gland cancer while in service." Moreover, he explained that no medical studies have ever correlated parotid tumors to herbicide exposure, noting other potential causes such as radiation exposure, viral infections, and exposure to rubber, nickel, and other chemicals, some of which can be found in cosmetic products. The examiner also noted that no studies had correlated this type of cancer to herbicide exposure. In light of this evidence, the Board finds that the competent evidence of record supports that the condition is not due to the Veteran's exposure to herbicide agents during service. Specifically, the December 2021 medical opinion is thorough, well-reasoned as it explains the relevant medical principles in light of the Veteran's history of tactical herbicide exposure and applies those principles to the relevant inquiry. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Though the Board acknowledges statements from the Veteran and his wife suggesting that a connection to herbicide exposure could be feasible given that a connection is presumed for cancers located in areas near the parotid gland, the evidence does not support that the Veteran or his wife have a requisite education, training, or experience to opine on the etiologies of the body systems in and near the parotid gland, which are medically complex issues beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also acknowledges the January 2022 letter from the Veteran's wife that the Veteran has not spent time in beauty shops such that he would have been exposed to the chemicals in cosmetic products that have been linked to parotid tumors; however, the Board finds that the examiner's opinion was not attributing the Veteran's prior cancer to exposure to cosmetic products, but rather was explaining what research has found are potential causes of parotid gland cancer. As it relates to the present matter, the crux of the examiner's opinion was that the medical literature has not found that parotid gland cancer is related to exposure to herbicide agents. The Board notes the Veteran's submission of an April 2013 Board decision concerning the case of another veteran who sought service connection for parotid gland cancer due to herbicide agent exposure. While the Board acknowledges that there was a favorable outcome for the claimant in that case, that decision was based on a medical opinion considering the facts of that veteran's specific situation. Prior Board decisions are not binding, and in every case the Board must consider the facts of the particular claimant's case. See 38 C.F.R. § 20.1303. Here, the evidence before the Board has stated that there is no support for connecting this Veteran's parotid gland cancer to his herbicide exposure. The Board furthermore acknowledges the reports from the Veteran and his wife that ever since the excision surgery the Veteran has experienced facial numbness and sweating. Additionally, the Veteran's wife reported in her January 2022 letter that following the surgery the Veteran was unable to close his right eye, needing her to tape it shut for him at night. In order for service connection to ultimately be warranted for these residuals of surgery, the evidence must show that the underlying excision surgery was required to treat a service-connected disease, and here, service connection has not been established for the parotid gland cancer. See generally 38 C.F.R. § 3.310(a). Ultimately, because the evidence is insufficient to establish a connection between the Veteran's parotid gland cancer and his service, to include his exposure to Agent Orange, service connection for parotid gland cancer unfortunately must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Service Connection for Carpal Tunnel Syndrome of the Right Upper Extremity, Claimed as Peripheral Neuropathy The Veteran filed a claim for service connection for peripheral neuropathy of his upper extremities, which he contends is due to his exposure to Agent Orange. After review of all the evidence, the Board finds that the Veteran has been diagnosed with carpal tunnel syndrome of the right upper extremity and that the condition has not been established as related to the Veteran's service. Treatment records from the Veteran's private providers show that in July 2010 the Veteran saw Dr. G.S., a private neurologist, who wrote that "[the Veteran] has paresthesias and pain, and he has a positive Tinel's and Phalen's signs. So, I think he has carpal tunnel syndrome." Based on that belief, Dr. G.S. ordered an EMG of the bilateral upper extremities to look for carpal tunnel, and in August 2010 Dr. G.S. wrote that the EMG "demonstrat[ed] right carpal tunnel syndrome" and that "there was no convincing electrophysiological evidence of a peripheral neuropathy." VA treatment records show that in 2016 the Veteran's diagnosis was re-affirmed after completing EMG/NCS testing. As directed by the Board's prior August 2021 remand the Veteran was afforded a VA examination in December 2021. After examination and review of the Veteran's history, the examiner explained that the Veteran's symptoms are explained by his diagnosis of carpal tunnel syndrome, and that the etiology of carpal tunnel syndrome is overuse. Thus, given the evidence of record, the Board finds that the evidence is insufficient to support service connection for the Veteran's upper right extremity condition. Specifically, the Board finds that the December 2021 medical opinion is thorough and well-reasoned as the examiner explained the relevant medical principles and applied those principles to the facts in this case. Nieves-Rodriguez, supra. The evidence supports a diagnosis of carpal tunnel syndrome, and as noted by Dr. G.S.'s 2010 interpretation of EMG testing, the evidence has not substantiated a diagnosis of peripheral neuropathy in the upper right extremity. Though the December 2021 VA examiner noted a diagnosis of bilateral median nerve neuropathy in the examination report, in the medical opinion, the examiner noted that neuropathy did not onset until 2016 and that the disorder first manifested of carpal tunnel syndrome which is an overuse disorder rather than one related to tactical herbicide exposure. Thus, the examiner found that the Veteran's right upper extremity disorder was not related to service. The Board acknowledges the contention from the Veteran and his wife that his upper extremity condition may be related to his presumed Agent Orange exposure; however, the Board notes, as discussed above, that the evidence does not show that the Veteran or his wife have the education, training, or experience to opine on the medically complex issue of the nature and etiology of the Veteran's upper extremity symptoms. Layno, 6 Vet. App. at 470. Additionally, a connection to herbicide exposure may not be presumed, as carpal tunnel syndrome is not among the diseases for which a presumed connection is available. 38 C.F.R. § 3.309(e). Ultimately, because the evidence shows that the Veteran's right upper extremity conditions have been diagnosed as carpal tunnel syndrome, and because the competent evidence of record has attributed the carpal tunnel syndrome to overuse rather than to exposure to herbicide agents or another in-service event or injury, the Board finds that the weight of the evidence is persuasively against a connection to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board's role is to assess the weight of all evidence). Accordingly, service connection for carpal tunnel syndrome of the right upper extremity, claimed as peripheral neuropathy, is denied. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS FOR REMAND For the remaining claims the Board finds that further remand is necessary in order to ensure the Veteran is provided with an adequate etiology opinions. 1. Service Connection for a Condition Claimed as Left Upper Extremity Peripheral Neuropathy The evidence reflects that the Veteran was diagnosed with carpal tunnel syndrome in the left upper extremity in 2016 after EMG/NCS testing. The December 2021 C&P examiner therefore concluded, as he did for the right upper extremity, that the Veteran's left upper extremity symptoms are due to carpal tunnel syndrome. An October 2019 VA treatment record reveals a 2016 diagnosis of left upper extremity carpal tunnel syndrome; however, the Board does not find evidence substantiating such a diagnosis prior to 2016. Rather, the evidence shows that while Dr. G.S. suspected in 2010 that the Veteran had bilateral carpal tunnel syndrome, prompting the 2010 EMG that ultimately confirmed right upper extremity carpal tunnel syndrome, that EMG testing found normal results for the left upper extremity. As a result, it appears that the Veteran's symptoms in the left upper extremity took on a different pathology than those in the right upper extremity. While there was a definitive diagnosis of carpal tunnel syndrome in the right upper extremity, no such diagnosis was rendered prior to 2016 for the left upper extremity. However, during the claims period records show that the Veteran was experiencing numbness in his left upper extremity. Given this evidence of a disability during the time period prior to the 2016 diagnosis of left upper extremity carpal tunnel syndrome, the Board finds that an addendum opinion is necessary to clarify the etiology of these symptoms. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), Wait v. Wilkie, 33 Vet. App. 8, 15-16 (2020); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement for a current disability is satisfied where the evidence shows the Veteran had a disability at any time during the pendency of his claim). 2. Service Connection for Peripheral Neuropathy of the Bilateral Lower Extremities As directed by the Board's prior August 2021 decision, a C&P examination was provided in December 2021. After examination and review of the Veteran's file, the examiner did not find support for a diagnosis of lower extremity neuropathy, noting that while there were abnormal ankle reflex bilaterally, the finding "could be a finding [that supports neuropathy] but are just as likely normal findings." In the examiner's opinion, the Veteran has "lateral nerve neuropathy" which is a "result of spine surgery" in April 2014 in which, per VA treatment records, the Veteran underwent spinal fusion following "a significant injury to his lumbar spine." The Board finds that remand is required to obtain a new examination and opinion. First, the Board finds that the December 2021 report is unclear whether the examiner ultimately considered the Veteran to have a diagnosis of peripheral neuropathy. By law, where the evidence is in approximate balance, the claimant must be given the benefit of the doubt. Thus, if the evidence is, as the examiner stated, "just as likely" as not that the Veteran has neuropathy of the lower extremities, such a diagnosis should be made. See generally 38 U.S.C. § 5107(b). The examiner's report, however, did not provide a diagnosis regarding the bilateral lower extremities in the diagnosis section of the examination form, and in the remarks section the examiner casted doubt on whether the Veteran has a diagnosis of neuropathy in the lower extremities (though simultaneously offering an opinion on the etiology of "lateral nerve neuropathy" in the lower extremities). Given this potential for a finding that should be resolved in the Veteran's benefit based on applicable law, as well any resulting impact the failure to make this finding may have had on the examiner's etiology opinion, a new examination should be provided. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Second, regarding the examiner's opinion that the Veteran's lower extremity "lateral nerve neuropathy" is due to an April 2014 spinal fusion surgery, of record are many treatment records prior to April 2014 in which the Veteran was reporting numbness symptoms in his right lower extremity, as well as an August 2010 note relating that "when he tries to do activity for any length of time, both lower extremities go numb." Given this evidence, the Board finds the December 2021 opinion inadequately failed to address how the Veteran's lower-extremity symptoms, for which he filed service connection in 2012, could be attributed to spinal fusion surgery that he only later underwent in April 2014. See, e.g., Nieves-Rodriguez, 22 Vet. App. at 302 (holding that probative value of an opinion depends on an accurate application of the facts). In order to cure these inadequacies, a new examination and opinion must be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matters are REMANDED for the following actions: 1. Obtain an addendum opinion regarding the etiology of the Veteran's left upper extremity condition. It is left to the clinician's discretion whether a new examination is required. Specifically, the examiner should opine as to whether It is at least as likely as not that the Veteran's left upper extremity condition is related to service, to include his exposure to Agent Orange and other herbicide agents. Please note the disorder manifested in numbness around the time of his claim for benefits in July 2012 and a diagnosis of carpal tunnel syndrome was not rendered until 2016. While an opinion regarding the diagnosis of the Veteran's condition from July 2012 until the diagnosis of carpal tunnel syndrome in 2016 may be offered, in the event that a diagnosis cannot be made, an opinion must still be provided regarding a relation between the Veteran's left upper extremity symptoms and his service, to include exposure to Agent Orange. A complete rationale should be provided for any opinion rendered. In preparing either of the above opinion, the clinician should consider that a 2010 EMG found the Veteran's left upper extremity normal, as well as that in 2016 EMG/NCS testing confirmed left upper extremity carpal tunnel syndrome. 2. Afford the Veteran a new VA examination to determine the nature and etiology of his bilateral lower extremity numbness and tingling, claimed as peripheral neuropathy. Specifically, the examiner should: (a) Render a diagnosis of the Veteran's right or left lower extremity disorders. In doing so, please consider (i) Dr. G.S.'s August 2010 interpretation of an August 2010 EMG and the findings from the December 2021 VA examination. (b) For any disorders found, opine as to whether the disorders at least as likely as not is that the disorders are related to service, to include the Veteran's Agent Orange exposure, wear and tear of carrying weight on his back, trudging through the jungle, and jumping out of helicopters. In doing so, the examiner should consider that the Veteran has stated he has experienced symptoms "since shortly after [his] discharge" and his statement in October 2010 that his right leg symptoms had "been going on for thirty years"; as well as a statement from the Veteran's wife that the Veteran "was having problems in his extremities, particularly his right leg, going numb" since she met him in 1978. (c) If the Veteran's diagnosis in either lower extremity is peripheral neuropathy, the examiner should opine whether the condition at least as likely as not was incurred within one year after July 1970 (the Veteran's last day in Vietnam, where he was presumed to be exposed to herbicide agents). The examiner should consider that the Veteran has stated he has experienced symptoms "since shortly after [his] discharge" and his statement in October 2010 that his right leg symptoms had "been going on for thirty years"; as well as a statement from the Veteran's wife that the Veteran "was having problems in his extremities, particularly his right leg, going numb" since she met him in 1978. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.