Citation Nr: 21001131 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-42 339 DATE: January 7, 2021 REMANDED Entitlement to service connection for metastatic squamous cell carcinoma (SCC) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1984 to March 1992, and from June 2006 to September 2007, to include service in Iraq. He also had service in the Army National Guard. His decorations include the Iraq Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. In March 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for metastatic SCC is remanded. The Veteran contends that his metastatic SCC was incurred in or caused by service. Specifically, he contended at his March 2020 hearing that the cancer was due to toxic chemical or other environmental exposures while serving on active duty in Iraq. He further specified that his contention is that he was exposed to toxic chemicals from a burn pit in Kirkuk, Iraq, that his cancer was caused by that exposure, and that it was not caused by post active duty exposure to toxic chemicals while working as a government contractor in Iraq or Afghanistan. As an initial matter, the Board notes that the Veteran has had one tour of active duty in Iraq, which was from August 2006 to August 2007. He later returned to Iraq as a full-time government contractor between April 2011 and September 2011. He also worked as a full-time government contractor from September 2011 to December 2012 in Afghanistan. The Board also notes that the record demonstrates that the Veteran has a current diagnosis of metastatic SCC. He has submitted several statements from private care providers regarding the etiology of his cancer. In a January 2015 statement, R.M., M.D. noted that he treated the Veteran for metastatic SSC, and that he had no significant history of tobacco use which was the usual causal agent for head and neck cancers. He noted that the Veteran had two tours of duty in the Middle East, however, and that the Veteran reported that he had been exposed to chemicals from a vapor pond in Kandahar, Afghanistan. He opined that the cancer was very suspicious for being directly related to the Veteran’s military service, and that it had been present for his last four years of service. In a treatment record dated that same month, Dr. M. identified the Veteran’s first tour of duty as being from 2006 to 2007 and the second from 2010 to 2013. He also stated that approximately four years earlier the Veteran had developed swelling of the lymph nodes in the left neck, and that a biopsy in December 2014 showed cancer. Dr. M. provided a second statement later in January 2015. While very similar to his first statement, in the second statement Dr. M. omitted that the Veteran had two tours of duty in the Middle East and that he was exposed to chemicals from a pond in Afghanistan, this time stating only that he “did a tour of duty in the Middle East.” Dr. M. repeated his prior statement that the cancer was very suspicious for being directly related to the Veteran’s military service and that it had been present for his last four years of service. Dr. M. provided a third statement in March 2020, in which he largely reiterated the statements he made in the second January 2015 statement. The Board finds that Dr. M.’s statements are insufficient for an award of service connection at present. It appears that he misunderstood the nature of the Veteran’s periods of active duty versus his work as an overseas contractor inasmuch as he noted in all three statements that the Veteran developed swollen lymph nodes four years prior to 2015, which would be in 2011. His statements to the effect that the cancer had been present for the last four years of the Veteran’s service appears, therefore, to relate to his period of work as contractor from 2010 to 2013, rather than his period of active service, which ended in 2007. Additionally, Dr. M.s’ statement in all three letters that the cancer was “very suspicious” for being related to the Veteran’s military service is equivocal, rather than being expressed in terms of probability. The Veteran submitted a statement from another private care provider, J. S., M.D, in January 2015. Dr. S. stated that he also treated the Veteran for metastatic SCC, and that the Veteran had a history of serving in Iraq, including in Kandahar, and in Afghanistan. He also stated that it was his medical opinion that it was possible that the Veteran had toxic chemical exposures while in the military that could have led to his cancer. The Board also finds Dr. S.’s statement insufficient for an award of service connection. His opinion is speculative inasmuch as he expressed it in terms of possibility, rather than probability. The Veteran submitted two statements from a third private care provider, E.G., M.D., in September 2015 and March 2020. In the September 2015 statement, Dr. G. stated that the Veteran was on active duty while serving two tours of duty in the Middle East. He identified the first tour of duty as being from 2006 to 2007 and the second from 2010 to 2013. He noted that during the first tour of duty the Veteran was exposed to a chemical pond where toxic waste was kept in Kandahar, Afghanistan. He went on to state that in approximately 2011 the Veteran began developing lymph nodes in the left neck, but that military physicians did not recommend workup as the lymph nodes were not painful. He noted that biopsy in December 2014 confirmed metastatic SCC and stated that he would recommend the Veteran be re-evaluated for a service-connected illness as he was on active duty when the problem developed. In the March 2020 statement, Dr. G. stated that the Veteran was exposed to a chemical pond where toxic waste was kept during a tour of duty in the Middle East. He also altered the date at which the lymph node problems began developing, noting that it was in approximately 2007 instead of 2011. He opined that it was more likely than not that the Veteran’s exposure to the toxic chemical pond was related to his development of the malignancy in the head and neck. The Board also finds Dr. G.’s statements insufficient for an award of service connection. His findings in the September 2015 statement appear to confuse the Veteran’s periods of active service and contract work, and his statement that the Veteran’s disability was related to exposure to a chemical pond in Kandahar, Afghanistan, serves as evidence against the Veteran’s claim, inasmuch as the Veteran did not have active service in Afghanistan. The March 2020 statement is also inconsistent with other evidence of record inasmuch as Dr. G. stated that the Veteran’s lymph node problems began developing in 2007, and that they were due to exposure to a chemical pond, rather than a burn pit. Finally, the Veteran submitted a statement from J.B., M.D., an independent medical examiner, in October 2015. Dr. B. provided an extensive list of his credentials, indicated that he had reviewed the Veteran’s records, and reported some general information regarding tonsil cancer. Dr. B. then stated that as likely as not there was a nexus between the Veteran’s metastatic SCC and his military service. As with the statements from the other private providers, the Board finds Dr. B.’s opinion insufficient for an award of service connection. Dr. B.’s opinion addresses tonsil cancers generally, rather than the Veteran’s case specifically. Still further, he provided no rationale to support his nexus opinion. The Veteran was afforded a VA Gulf War examination by a nurse practitioner in July 2015. The examiner noted that the Veteran had metastatic SCC, diagnosed in December 2014. The examiner offered a negative nexus opinion, stating that a review of the Veteran’s service treatment records (STRs) was silent for any complaints of a throat lump or problems. She noted that the Veteran reported serving as a contractor in Iraq and Afghanistan after leaving active duty, also noting that his active duty in Iraq was from 2006 to 2007. She further noted that after active service the Veteran worked as a contractor for the government and remained in the National Guard from April 2011 to September 2011, when he was in Iraq as a contractor, and that from September 2011 to December 2012 he was in Afghanistan as a contractor where he and his oncologist acknowledged his exposure to chemical dumps before returning to the U.S. and being diagnosed with cancer. The examiner also addressed the January 2015 statements from Dr. M., finding that Dr. M. was speaking of the last four years in his statement, and noting that the Veteran had not been on active service since September 2007 in Iraq. She stated that the Veteran had numerous examinations, including a VA examination in 2008, where there was no mention of a lump to the left neck/lymph node. She opined that it was therefore less likely than not that the Veteran’s metastatic SCC was related to environmental exposure experienced in the Gulf War while on active service from June 2006 to September 2007, and that it was at least as likely as not caused or incurred while he was on inactive status in the National Guard and employed full-time as a government contractor in Iraq from April 2011 to September 2011, and in Afghanistan from September 2011 to December 2012. The RO sought an addendum opinion in May 2016. An M.D. staff physician provided the opinion. He also offered a negative nexus opinion, reasoning that STRs did not document SCC of the tonsil, and that the majority of peer-reviewed medical literature did not establish toxic exposure in Southwest Asia as the cause of SCC of the tonsil. He further noted that one outside provider had given a possible positive opinion which was insufficient, and that another outside provider gave a positive opinion without documentation of a relationship of toxic exposure in Southwest Asia to SCC in the majority of peer-reviewed literature. The Board notes that relevant STRs were added to the claims file in July 2016. The July 2015 and May 2016 VA examiners therefore did not have the benefit of reviewing those STRs prior to providing their opinions. Because consideration of those records could have a bearing on the outcome of the Veteran’s claim, the Board finds that a remand for an addendum opinion is warranted. Additionally, because the Veteran in his March 2020 Informal Hearing Presentation expressed concern with the credentials of the VA examiners, the Board finds that the addendum opinion should be provided by an M.D., if possible. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to provide the expanded record to the VA examiner who provided an opinion in May 2016 for an addendum opinion as to the etiology of the Veteran’s metastatic SCC. The examiner should review the record. After reviewing the expanded record, the examiner should prepare a supplemental report and provide an addendum opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s metastatic SCC had its onset in, or is otherwise related to, a period of active service. In so doing, the examiner should consider the STRs added to the claims file in July 2016, the January 2015 and March 2020 statements from Dr. M., the January 2015 statement from Dr. S., the September 2015 and March 2020 statements from Dr. G., and the October 2015 statement from Dr. B. If the May 2016 examiner is no longer employed by VA or is otherwise unable to provide the requested opinion, the RO should arrange to obtain the opinion from another qualified physician, if possible. The need for another in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.