Citation Nr: A21020096 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200214-62055 DATE: December 16, 2021 REMANDED Entitlement to service connection for right base of tongue/lingual tonsil squamous cell carcinoma, claimed as throat cancer, to include as due to Agent Orange exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to November 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for right base of tongue/lingual tonsil squamous cell carcinoma (claimed as throat cancer). The Veteran submitted a VA Form 10182 notice of disagreement (NOD) which was received in February 2020, and he selected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) March 2019 rating decision on appeal. 38 C.F.R. § 20.301. In a January 2021 decision, the Board denied the claim on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an August 2021 Court Order granting an August 2021 Joint Motion for Remand (JMR), the Court vacated the Board's January 2021 decision and remanded the case for further development in compliance with the directives specified in the JMR. Entitlement to service connection for right base of tongue/lingual tonsil squamous cell carcinoma, claimed as throat cancer, to include as due to Agent Orange exposure, is remanded. The Veteran contends that his throat cancer is related to service. Specifically, he contends that the throat cancer is caused by in-service Agent Orange exposure. See, e.g., February 2020 VA Form 10182. As noted in the January 2021 Board decision, the Veteran is presumed to have been exposed to Agent Orange during service, based on service in the Republic of Vietnam during the Vietnam War. Neither tongue/lingual tonsil squamous cell carcinoma nor "throat cancer" generally is included within the list of diseases that are presumed to be due to in-service herbicide exposure for Vietnam veterans. 38 C.F.R. § 3.309(e). Still, service connection may still be established on a direct basis. The Veteran had a VA Nose, Throat, and Larynx examination in February 2019. The examiner acknowledged the diagnosis of throat cancer, and noted, "onset 2018 due to exposure to Agent Orange while deployed in Vietnam 1966-1967." The examiner also noted "[t]he veteran was a Vietnam deployed soldier with Agent Orange exposure by history." The examiner did not, however, provide any rationale for this notation, and it appears that the note was a recitation of the Veteran's own self-reported history and opinion as to etiology. In its January 2021 decision, the Board determined that the February 2019 VA examiner's opinion carried no probative weight, because the opinion was not supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). However, in the August 2021 JMR, the parties to the JMR determined "that the Board erred because it did not adequately discuss if [the Veteran], based on the evidence of record, to include the discounted February 2019 examination report, was entitled to a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006)." Given the February 2019 VA examiner's unexplained remark that the Veteran's claimed cancer was "due to exposure to Agent Orange while deployed in Vietnam," the appeal must be remanded for a VA examination and opinion regarding the etiology of the Veteran's claimed throat cancer. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83 (holding that the types of evidence that "indicate" that a current disability "may be associated" with military service include medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); see also 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an oncologist, if possible, to determine the nature and etiology of the Veteran's claimed throat cancer. The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent likelihood or greater) that the Veteran's right base of tongue/lingual tonsil squamous cell carcinoma or any other throat cancer is related to service, to include in-service Agent Orange exposure. The examiner is advised that the mere absence of tongue/lingual tonsil squamous cell carcinoma or throat cancer from the list of diseases for which VA has acknowledged a link to Agent Orange exposure is not an adequate basis upon which to form an opinion. An opinion based solely on such a finding will not satisfy the directives of this remand, and will likely result in the need for another opinion. In so opining, the examiner should consider the Veteran's lay statements concerning the onset and history of his throat cancer. However, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. Andrew Mack Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.