Citation Nr: 21008733 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-16 833 DATE: February 17, 2021 REMANDED Entitlement to service connection for cancers of the soft palate, lungs, esophagus, tonsils, and throat, to include as due to contaminated water at Camp Lejeune is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to November 1969 with service at Camp Lejeune from November 1968 to November 1969. This matter was previously before the Board in June 2017, wherein the Board remanded the claim for additional development, to include a VA medical opinion. In a May 2019 Board decision, the Board issued a decision that denied entitlement to service connection for cancers of the soft palate, lungs, esophagus, tonsils and throat. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the May 2019 decision back to the Board. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a March 2017 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was most recently before the Board in September 2020, in which the Board remanded for a new VA medical opinion, and the case has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The September 2020 Board decision remanded the issue as the Court found that the May 2019 Board decision relied on an August 2018 VA medical opinion which failed to discuss the Veteran’s in-service complaints of a sore throat as directed by the June 2017 Board remand. The parties agreed that the August 2018 VA medical opinion was inadequate due to a Stegall violation as the opinion did not substantially comply with the Board’s June 2017 remand instructions. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the parties agreed that the Veteran provided testimony that he smoked half a pack of cigarettes per day for approximately ten years rather than one pack per day as noted by the August 2018 VA examiner and that this should be considered by the VA examiner on remand. As directed by the September 2020 Board decision, a new VA medical opinion was obtained in October 2020. The VA examiner opined that the claimed conditions are not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. In his medical opinion report, the VA examiner stated that the Veteran was a twenty pack-year smoker, quitting thirty-one years ago. The March 2020 JMR and September 2020 Board remand instructions specifically instructed the VA examiner to consider that the Veteran testified that he smoked half a pack for approximately ten years. Thus, the VA examiner relied on an inaccurate factual premise when forming his conclusions. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Furthermore, the October 2020 VA examiner failed to discuss the Veteran’s complaints of a sore throat as documented in his service treatment records (STRs). The March 2020 JMR and September 2020 Board decision specifically requested the VA examiner to address such evidence in the VA medical opinion. As the October 2020 examiner did not include any discussion regarding the complaints of sore throat in service, the Board finds that there has not been substantial compliance with the September 2020 Board’s remand directives. As such, in accordance with Stegall, remand for an addendum VA medical opinion is necessary for full compliance with the Board's prior remand. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Once the above has been completed, obtain an addendum opinion from the VA provider who issued the October 2020 medical opinion to address the claim for service connection for cancers of the soft palate, lungs, esophagus, tonsils, and throat as due to presumed exposure to contaminated water while stationed at Camp Lejeune (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (50 percent or greater probability) that the Veteran's squamous cell carcinoma involving the right tonsil/right lateral soft palate, squamous cell lung cancer, and/or esophageal cancer is related to the Veteran's military service, to include presumed exposure to contaminated drinking water at Camp Lejeune? The RO should provide the examiner with the appendices listed in VBA’s Training Letter 11-03. The physician should review the appendices provided and note in the examination report that such review of the appendices and complete review of the file has been conducted. The physician should elicit from the Veteran any information not available through a review of the claims folder that may be relevant to rendering the requested nexus opinion. The examiner must discuss the Veteran’s STRs that documented complaints of a sore throat in February 1968, December 1968, January 1969, March 1969, and September 1969 and be accompanied by an adequate rationale as to these in-service events and the likelihood they are related to the Veteran’s current condition. In rendering any opinion, the VA examiner must also discuss the Veteran’s smoking history and his testimony that he smoked half a pack a day for approximately ten years. The physician should also consider the medical opinions from Dr. E.C., dated February 2017 and April 2017 when forming his or her opinion. The physician’s opinion should include a discussion of any potential risk factors for the development of squamous cell carcinoma involving the right tonsil/right lateral soft palate, squamous cell lung cancer, and/or esophageal cancer, as well as discussion of the Veteran’s specific exposures, to include route of exposure, length of exposure, and level of exposure, if known. The examiner should specifically discuss whether the Veteran’s arguments that his cancers are due to his exposure to the contaminated water are sufficient with other evidence of record to link the current disorders to service. If sufficient, the examiner should state whether there is any medical reason for rejecting the Veteran’s reports. The absence of supporting clinical records is a legally insufficient reason, by itself, for rejecting the Veteran’s reports, unless the existence of such records would be medically expected. The examiner should comment on the above and set forth the complete rationale for all opinions. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.