Citation Nr: 21076263 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 11-02 864 DATE: December 22, 2021 REMANDED Entitlement to service connection for tonsillar cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in February 2021. The Board remanded the issue on appeal for an addendum medical opinion. However, as discussed below, the Board finds that remand is necessary for further development. Stegall v. West, 11 Vet. Ap. 268, 271 (1998). Entitlement to service connection for tonsillar cancer is remanded. The Veteran initially sought service connection for tonsil/throat cancer in April 2002. See April 2002 VA Form 21-526. The Veteran's claim was initially denied in an October 2002 unappealed rating decision. The Veteran sought to reopen his claim and contends that his tonsillar cancer was caused by exposure to Agent Orange in Vietnam. See August 2009 correspondence. The Board reopened the Veteran's claim in a June 2017 decision. The Veteran was initially afforded a VA examination in April 2018. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). At the April 2018 VA examination, the Veteran reported that immediately after being exposed to chemicals being sprayed in Vietnam, namely Agent Orange, he noticed a sore throat that has continued throughout his life. See April 2018 VA examination. The Veteran reported that he was given oral antibiotics upon release from the military. Id. The VA examiner provided a negative nexus opinion. Id. In September 2018, the Board denied the Veteran's claim and the Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Court Memorandum Decision, the Court determined the April 2018 VA examination was inadequate and vacated the Board's September 2018 decision. In July 2020, the Board remanded the issue on appeal to the RO to obtain an addendum medical opinion. An addendum medical opinion was obtained in September 2020. However, in a November 2020 decision, the Board determined the September 2020 VA medical opinion inadequate for decision making purposes and remanded the issue for additional development. The Board directed the RO to obtain an addendum medical opinion and directed the examiner to address the Veteran's credible and competent reports of throat discomfort in service and continued problems with his tonsils and throat since service. An addendum medical opinion was obtained in December 2020. However, in the Board's previous February 2021 remand, the Board determined the December 2020 VA medical opinion inadequate. Specifically, the Board noted the examiner did not apply the correct legal standard and failed discuss the Veteran's reports of throat discomfort in service and problems that continued since service. As such, the Board remanded the issue on appeal again to obtain an addendum medical opinion. The Board noted the examiner "must" address the Veteran's lay statements; provide a complete medical explanation; and discuss whether the Veteran has any risk factors for tonsillar squamous cell cancer and why they are more likely the cause of his tonsillar squamous cell cancer than his presumed herbicide exposure. Following the Board's February 2021 remand, an addendum medical opinion was initially obtained in June 2021. The VA examiner opined that the Veteran's condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. See June 2021 VA examination. However, the VA examiner only included the Board's prior decision as rationale and did not provide a clear rationale for the opinion provided. As such, the Board finds the June 2021 VA medical opinion inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. In June 2021, the VA requested an addendum medical opinion based on a finding that the June 2021 VA examiner failed to provide a rationale. An addendum medical opinion was obtained in July 2021. However, the VA examiner noted there was no chronic diagnosis for tonsil cancer. The record clearly demonstrates the Veteran was diagnosed with tonsillar cancer in February 2002 and received chemotherapy in April 2002. See April and May 2002 VA treatment records; and April 2018 VA examination. In an October 2021 addendum medical opinion, the VA examiner noted the Veteran does have a diagnosis of tonsillar squamous cell carcinoma. See October 2021 VA medical opinion. The VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include exposure to herbicides. Id. As rationale, the VA examiner stated that many studies showed positive associations between pesticide exposure and solid tumors; most consistent associations were found for brain and prostate cancer; however, association/correlation does not equal causation. Id. The VA examiner noted the Veteran was noted to be smoker and that smoking is one of the most common causes of tonsillar cancer. Id. The VA examiner noted there was no chronicity, and a nexus was not established. Id. However, the VA examiner did not discuss the Veteran's lay statements regarding experiencing symptoms in service and since service, including throat discomfort and problems with his tonsils since service. The Veteran reported having trouble with his tonsils since returning from Vietnam. See February 2010 VA Form 21-4142. The Veteran also reported he woke up with throat discomfort in service after sleeping in vegetation which had turned brown and died. See January 2011 VA Form 9. Additionally, the Veteran asserted that a physician told him that his son's trouble with his tonsils and his daughter's curvature of the spine was probably caused by the Veteran being exposed to Agent Orange. See February 2010 statement in support of claim. Unfortunately, the Board finds that remand is necessary to obtain an addendum medical opinion that adequately addresses the Veteran's lay statements regarding onset of symptoms as directed the by the Board's prior remand directives. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this Remand to the examiner who provided the October 2021 VA addendum medical opinion, or, if that examiner is unavailable, to another suitably qualified physician, for completion of an addendum opinion to determine the nature and etiology of the Veteran's tonsillar squamous cell carcinoma. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner must address the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's tonsillar cancer had its onset during service is or otherwise causally or etiologically related to his active duty service, to include as due to his conceded exposure to herbicide agents. A complete and adequate rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. The examiner must consider and address the Veteran's lay statements regarding onset of symptoms, including his reports of throat discomfort in service and throat/tonsil problems since service. See February 2010 statement in support of claim; January 2011 VA Form 9; and April 2018 VA examination. The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for tonsillar squamous cell cancer. The Agent Orange Updates, however, use only a general statistical analysis to determine whether a disease should be service connected on a presumptive basis and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. (Continued on the next page) The examiner must base his/her opinion on the particular facts of this case. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.