Citation Nr: 21005408 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-45 054A DATE: February 1, 2021 REMANDED Entitlement to service connection for non-Hodgkin’s lymphoma, to include as secondary to an epidermal cyst behind the right ear, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1992 to March 1996. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The issue on appeal was previously before the Board in April 2018, June 2019, November 2019, and April 2020. In April 2018, the Board denied the Veteran’s claim. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it had denied service connection for non-Hodgkin’s lymphoma and remanding that matter for additional development and readjudication. In June 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development consistent with the JMPR. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In November 2019, the Board again denied the claim. However, it was subsequently discovered that the Board had been in constructive possession of additional evidence relevant to the claim which had not been considered in the November 2019 decision. As such, in April 2020, the Board vacated the November 2019 decision. The Board also found that the additional evidence necessitated a remand to the AOJ for a new medical opinion. After taking further action, the AOJ again confirmed and continued the prior denial and returned the case to the Board. As a final preliminary matter, the Board notes that the record reflects that the Veteran submitted a request for copies of records (Privacy Act request) in October 2020. Although acknowledged, action on that request has not yet been completed. However, the request was clearly made in connection with a claim other than the one that is currently under consideration. Accordingly, there is no need to delay action on the current appeal until such time as the request for records is fulfilled. Cf. 38 C.F.R. § 20.1200. Entitlement to service connection for non-Hodgkin’s lymphoma, to include as secondary to epidermal cyst behind the right ear Although the Board sincerely regrets the additional delay, further development is necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When this case was remanded in April 2020 the Board requested, among other things, that a VA medical opinion be obtained. Among other things, the Board directed that “[t]he examiner must consider and reconcile any conflicting medical evidence or opinions of record, to specifically include medical evidence submitted by the Veteran with regards to the etiology of his non-Hodgkin’s lymphoma.” (Emphasis in original). A VA medical opinion was obtained in May 2020. However, the examiner did not reconcile any conflicting medical opinions and did not specifically address the medical evidence submitted by the Veteran. Because there has not been substantial compliance with the remand directives, another remand is required. This matter is REMANDED for the following action: 1. Obtain a VA medical opinion from a physician with appropriate medical expertise, to determine the etiology of the Veteran's non-Hodgkin’s lymphoma. If the examiner feels that another examination is necessary, one should be scheduled. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. Review of the entire file is required; however, attention is invited to the November 1, 2019 medical opinion submitted by the Veteran. Note: If the Veteran identifies other evidence, obtain updated copies of the Veteran's treatment records, and associate them with the Veteran's claims folder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his non-Hodgkin’s lymphoma began in service, was caused by service, or is otherwise related to active military service. A complete rationale must be provided for any opinion offered. If the above opinion is negative, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the non-Hodgkin’s lymphoma was caused or proximately due to any of the Veteran’s service-connected disabilities, to include the service-connected epidermal cyst of his right posterior auricular area. A complete rationale must be provided for the opinion offered. If both above opinions are negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the non-Hodgkin’s lymphoma was aggravated beyond natural progression by any of the Veteran’s service-connected disabilities, to include the service-connected epidermal cyst of his right posterior auricular area. The examiner must consider and reconcile any conflicting medical evidence or opinions of record, to specifically include medical evidence submitted by the Veteran with regards to the etiology of his non-Hodgkin’s lymphoma. See November 1, 2019 Medical Opinion; see also September 11, 2015 statement from D. R. A complete, well-reasoned rationale must be provided for any opinion offered, to include reference to pertinent evidence of record and medical literature or treatises, where appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate stems from a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or because the examiner does not have the needed knowledge or training. 2. Review the aforementioned examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures. 3. After the above development, and any additionally-indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, then send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.