Citation Nr: 21068557 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-25 644 DATE: REMANDED Entitlement to service connection for right tonsil squamous cell carcinoma, to include as secondary to in-service herbicide, asbestos, and jet fuel exposures, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from January 1964 to December 1967. This matter comes before the Board of Veterans' Appeals(Board)on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board reopened this claim and remanded it for additional development. Thereafter, in an August 2020 decision, the Board denied the Veteran's claim. The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a June 2021 Joint Motion for Remand (JMR) filed by the parties, the Court vacated the Board's August 2020 decision and remanded the Veteran's claim for service connection for right tonsil squamous cell carcinoma back to the Board for additional development and adjudication consistent with the terms of the JMR. See June 2021 JMR; June 2021 CAVC Order. The issue has thus returned to the Board. 1. Entitlement to service connection for right tonsil squamous cell carcinoma, to include as secondary to in-service herbicide, asbestos, and jet fuel exposures, is remanded. Although the Board regrets further delay, a remand is required to ensure compliance with the terms of the JMR and afford the Veteran every possible consideration. In this regard, the June 2021 JMR determined that the Board erred in failing to ensure satisfaction of VA's duty to assist the Veteran in obtaining relevant records of private treatment for his claimed condition. See June 2021 JMR; see also 38 C.F.R. §§ 3.159(c)(1), (e)(2) (detailing VA's duty to assist claimants in obtaining records not in the custody of a Federal department or agency and reflecting that, if VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records). In particular, the JMR determined that the record sufficiently raised the possibility that relevant medical records from a private physician, M. S., M. D., existed but no attempt had been made by VA to obtain them. Id. Accordingly, the JMR directed the Board to "ensure satisfaction of the duty to assist [by] obtaining additional records from Dr. [M.S.]." Id. Additionally, the parties to the June 2021 JMR agreed that the Board erred in failing to adequately address the Veteran's "specifically raised theory of entitlement that his disability was related to exposure to jet fuel." See id. In this regard, the Board notes that the Veteran has alleged multiple theories of entitlement, including that his right tonsil squamous cell carcinoma was caused by in-service exposure to herbicide agents, asbestos, and/or jet fuel. See, e.g., May 2014 Statement in Support of Claim (VA Form 21-4138). Although the Veteran has been provided a VA examination with addendum opinions regarding the likely etiology of his condition, the VA medical opinions currently of record only discuss the Veteran's exposure to asbestos and herbicides, and do not address the Veteran's claimed exposure to jet fuel. See May 2014 VA Hematologic and Lymphatic Conditions Disability Benefits Questionnaire (DBQ) (finding that the Veteran's squamous cell carcinoma of the right tonsil was less likely than not related to his history of in-service asbestos exposure); February 2020 VA Medical Opinion DBQ (reflecting the determination that the Veteran's right tonsil squamous cell carcinoma was less likely than not related to his in-service herbicide exposure because "that type of cancer is not associated with herbicide exposure"). As such, and considering the directives of the June 2021 JMR, remand is required. See id. See, too, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim. * Pursuant to the June 2021 JMR, a specific request must be made for any outstanding medical records from M.F.S., M. D. The Veteran should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for an examination by an appropriate clinician, other than the physician who provided the May 2014 and February 2020 opinions, if possible, to determine the nature and etiology of his right tonsil squamous cell carcinoma. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available private and/or VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that right tonsil squamous cell carcinoma had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's exposure to herbicides, asbestos, and jet fuel. In providing these requested opinions, the examiner should note that the Veteran's exposure to Agent Orange is presumed by virtue of his service off the coast of the Republic of Vietnam. Additionally, the Board advises that the examiner may not rely solely on the fact that a given disability is not on the presumptive list of diseases associated with herbicide exposure. Rather, the evaluating clinician must opine as to whether or not there is a direct relationship between any diagnosed condition and the Veteran's in-service herbicide exposure and must provide specific reasons in support of the opinion, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are any other risk factors that might be the cause of the Veteran's disability, and whether the condition has manifested itself in an unusual manner. The examiner should also note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Additionally, the examiner must consider and address the lay and medical evidence of record, including specifically the medical opinions of the Veteran's private treatment provider, M.F.S., M.D., dated in March 2002, October 2002, and July 2019, describing the potential relationship between the Veteran's tonsil cancer and his various in-service exposures. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. Moreover, if an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case and what, if any, additional evidence would be necessary before an opinion could be rendered. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.