Citation Nr: 22019271 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 19-33 378 DATE: March 31, 2022 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for parotid gland cancer, to include as due to herbicide exposure, environmental toxins, and jet fuel is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1969 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a VA Regional Office (RO). The Veteran testified before the undersigned in a November 2021 Board hearing, a transcript of which has been associated with the claims file and considered in preparation of this decision. As will be discussed in greater detail below, although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. 1. Entitlement to service connection for tinnitus is remanded. The Veteran contends that his tinnitus is related to service. Specifically, the Veteran asserts that he was exposed to loud truck noise, including forklift noise, and concussion grenade blasts for over six hours a day for six to eight weeks during service at Danang, Vietnam while performing harbor security detail. See November 2021 Board Hearing, P. 21. The Veteran's Military Occupational Specialty (MOS) was a "general clerk". His military personnel records indicate his last duty assignment was "Danang" and was awarded the Vietnam Service medal with one bronze star and the Vietnam Campaign medal. His Service Treatment Records (STRs) do not contain any complaints, symptoms, treatment, or diagnosis regarding tinnitus. He denied hearing problems at his separation examination. At an October 2017 VA examination, the Veteran reported suffering tinnitus in both ears but could not recall when he first noticed symptoms. The examiner concluded that it was less likely than not that the Veteran's tinnitus had been incurred in or caused by military noise exposure because the "Veteran's job activities during service had a low probability of noise exposure...nexus has not been established". The examiner noted that the Veteran reported difficulty hearing from a distance, in noisy environments, and in group situations. Lastly, the examiner noted that the Veteran did not report any post service history of noise exposure. The Board finds the examiner did not adequately address whether in-service noise exposure led to post-service tinnitus. Especially in light of the Veteran's November 2021 testimony that his tinnitus was the result of noise exposure while performing security duties in Danang harbor. The October 2017 examiner failed to note any specific contentions of the Veteran nor is it apparent that any attempt to elicit such information was ever made by examiner. In fact, the examination report as a whole is devoid of much detail. As such, the Board cannot conclude that the examiner adequately considered the Veteran's experiences in service nor lay statements. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Additionally, the examiner's opinion is found to be conclusionary in nature as it failed to explain the etiology of the Veteran's tinnitus. Specifically, the examiner stated the Veteran's MOS would result in a low probability of noise exposure. In contrast, the examiner remarked that the Veteran experienced no reported post service hazardous noise exposure. Without an adequate rationale which explains the possible etiology of the Veteran's tinnitus given the Veteran had no post service hazardous noise exposure, the Board finds the record does not contain sufficient information to determine the etiology of the Veteran's tinnitus and thus decide the claim. Furthermore, the Board notes a condition diagnosed after service can still be service connected if related to an in-service injury, such as noise exposure in this case. Thus, tinnitus need not be diagnosed or arise during service for service connection to be granted. 38 C.F.R. § 3.303(d); Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, the Board finds a remand is warranted to ascertain the nature and etiology of the Veteran's tinnitus that properly considers his reports of in-service noise exposure. 2. Entitlement to service connection for parotid gland cancer, to include as due to herbicide exposure, environmental toxins, and jet fuel is remanded. The Veteran contends his parotic gland cancer (cancer), is due to his military service, to include as due to exposure to herbicides while serving in Vietnam. Alternatively, the Veteran has submitted several medical articles in support of his claim which indicate he also asserts that his cancer is due to other environmental toxins as well as exposure to jet fuel. As noted above, the Veteran's military personnel records indicate his last duty assignment was "Danang" and he was awarded the Vietnam Service medal with one bronze star and the Vietnam Campaign medal. Additionally, upon review of the record, it appears the RO has conceded herbicide exposure as it has only decided the Veteran's claim on the basis of presumed herbicide exposure in Vietnam with no indication that such in-service herbicide exposure has never been established. Therefore, the Board finds in-service herbicide exposure has been properly conceded as supported by the RO's earlier findings to include the Veteran's military personnel records. However, the Board notes, the Veteran's parotid gland cancer is not a disease enumerated in 38 C.F.R. § 3.309(e) for presumptive service connection due to herbicide agent exposure. However, service connection may still be granted on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's STRs are negative for any cancers, treatment for, or complaints of symptoms associated with any gland cancer. Post-service treatment records show that the Veteran was diagnosed with parotid gland cancer and subsequent surgical removal in 2016 along with ongoing treatment. The Board notes, the Veteran has never been afforded a VA examination or medical opinion for his cancer however, he has submitted private medical opinions by his treating physician Dr. E.N. In June 2017, Dr. E.N. reported that he was the treating physician for the Veteran's "high-grade salivary carcinoma". He noted that this type of cancer is a "fairly rare cancer" and that "it is possible and in fact probably likely that exposure to toxic chemicals may have played a role in the development of such an aggressive underlying malignancy". Dr. E.N. further noted "one would have to do a more thorough literature search between the connection between high-grade salivary tumors in this underlying disease, but his is an unusual enough tumor to posit that connection". In October 2017, Dr. E.N. supplemented his earlier opinion by reporting he is a head and neck cancer expert in Texas and that he has seen an increase in the occurrence over the past ten years of the Veteran's type of cancer along with reports of exposure to Agent Orange. He concluded, "I do believe that there is a clear linkage in exposure to Agent Orange and the development of this disease...". The Board finds the private medical opinions by Dr. E.N. are not adequate for adjudicative purposes, as such a remand is warranted. Dr. E.N.'s use of the terms such as "probably likely" and "may have" in his June 2017 opinion are speculative in nature and therefore must be given little probative weight. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (holding that the equivocal nature of an examiner's opinion "should have signaled to the Board that the medical opinion was speculative and of little probative value"). The private examiner's October 2017 addendum medical opinion is found to be conclusionary in nature as it did not include a proper rationale to include analysis of medical factors such as medical studies found persuasive or not persuasive, whether there are other risk factors associated with the condition(s) claimed, and whether the condition manifested itself in an unusual manner. See Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). See also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). Thus, remand is warranted for a VA opinion, and examination if deemed necessary; on remand, the examiner should provide a complete rationale explaining why the Veteran's parotid gland cancer is or is not related to the Veteran's in-service herbicide exposure considering medical factors as outlined in Polovick. The Board also notes, as no VA examination or medical opinion has been afforded to the Veteran to ascertain the etiology of the Veteran's parotid gland cancer in light of his conceded in-service herbicide exposure and submission of several medical articles indicating a causal relationship, a remand for such an examination and etiology opinion is also warranted. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Additionally, during the November 2021 Board hearing, the Veteran testified to having undergone only private treatment for his parotid gland cancer since first discovering a lump in his neck in 1997 and later being diagnosed with cancer in 2016. However, the record does not include complete treatment records from Dr. E.N., his treating physician. The Board notes that the Veteran has supplied several records from Dr. E.N. including the above-mentioned June and October 2017 medical opinions. However, these reports do not contain full records of treatment from 2016, only snapshots. Therefore, while on remand, the RO should make reasonable efforts to obtain all private treatment records pertaining to the Veteran's parotid gland cancer, to include all records from Dr. E.N. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records that the Veteran may identify as relevant to his claims, to include records from Dr. E.N. from 2016 to the present. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All efforts to obtain the Veteran's VA treatment records must be documented in the claims file and if it is determined that further efforts would be futile, a memorandum outlining all steps taken and conclusions reached should be drafted and associated with the claims file. 2. Afterwards, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. After examining the Veteran, if necessary, and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to: 3. Whether it is at least as likely as not that the Veteran's post-service tinnitus had its onset during, or is otherwise related to, noise exposure during his military service, to include vehicles, forklifts, and concussion grenades. The opinion should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms, if any, as well as his post-service symptoms, to include ringing in the ears. 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 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? A complete rationale should be provided for any opinions reached. 4. After completion of directive 1, schedule the Veteran for a VA examination by an appropriate examiner (for parotid gland cancer) to review the Veteran's file. The necessity of an in-person examination and any appropriate testing is left to the discretion of the examiner. The examiner should opine as to whether the Veteran's parotid gland cancer is at least as likely as not: (a) had an onset in service or (b) is otherwise related to service, to include consideration of the Veteran's contention that such cancer is related to his in-service herbicide agent, environmental toxin, or jet fuel exposure. In rendering his/her opinion, the examiner is asked to consider the medical articles submitted by the Veteran in November 2021 regarding a potential relationship between toxin, herbicide, and jet fuel exposures to the development of cancer. The examiner is reminded that the Veteran's herbicide exposure from service in Vietnam has been presumed. The examiner is further reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner is also reminded that a medical opinion finding no nexus based solely on the fact that the condition is not on the presumptive list of associated conditions with Agent Orange exposure is inadequate without a discussion into the claimant's specific risk factors and circumstances of service. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). The examiner must provide a complete rationale for his or her opinions in the examination report. If the Veteran and/or his representative's arguments are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject the contentions). 5. After the above development and any other development deemed necessary is completed, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.