Citation Nr: 21010138 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-02 864 DATE: February 24, 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, with service in the Republic of Vietnam. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board reopened the claim and remanded the matter for further development. In September 2018, the Board denied the Veteran’s claim of service connection for tonsillar cancer. The Veteran subsequently appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued a memorandum decision that vacated the Board’s September 2018 decision and remanded the matter to the Board. In July 2020 and November 2020, the Board remanded the case for further development. As the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for tonsillar cancer is remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in July 2020 and November 2020 so that the Agency of Original Jurisdiction (AOJ) could obtain an addendum VA medical opinion, and then readjudicate the Veteran’s claim for service connection for tonsillar cancer, in accordance with the Court’s December 2019 memorandum decision. In its December 2019 memorandum decision, the Court found that the April 2018 VA opinion relied upon by the Board was inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25. Specifically, the Court determined that the 2018 VA examination report did not adequately discuss the Veteran’s prior medical history and other considerations and factors that the Board deemed relevant for the proper assessment of the Veteran’s claim in its June 2017 remand. In particular, the 2018 VA examiner failed to discuss any of the factors, and instead provided a review of the medical literature underlying VA’s Agent Orange presumptions. As such, in its July 2020 decision, the Board remanded this matter to obtain and addendum opinion incompliance with the Court’s orders. Stegall v. West, 11 Vet. App. 268 (1998). An addendum opinion was obtained in September 2020. The examiner concluded that after reviewing the claims file and her April 2018 opinion, she had no changes to the April 2018 opinion. She opined that the Veteran’s tonsillar cancer was less likely than not related to service and concluded that her September 2020 opinion took into account all relevant risk factors, but was primarily based upon a lack of scientific evidence of sufficient evidence either in the Veteran’s claims file, including in the service treatment records to show a direct connection, and an absence of any scientific evidence to show a causal relationship between the cancer, herbicide exposure, or other events in service. In its November 2020 Board remand, the Board found that the September 2020 opinion was inadequate for essentially the same reasons the Court found the April 2018 opinion inadequate. The Board noted that the examiner stated that her opinion took into account all relevant risk factors, but she did not indicate which risk factors or elaborate how they resulted in a negative opinion. Instead, the Board indicated that the examiner again did not incorporate the Veteran’s history and risk factors into her opinion in any informative way. As such, the Board remanded the matter to obtain and addendum opinion incompliance with the Court’s orders. Stegall v. West, 11 Vet. App. 268 (1998). In its November 2020 remand instructions, the Board requested that an addendum be obtained from a VA examiner other than the examiner who conducted the Veteran’s April 2018 VA examination. The Board requested that the examiner opine whether it at least as likely as not (50 percent probability or more) that the Veteran’s tonsillar squamous cell cancer is etiologically related to the Veteran’s period of active service, to include as a result of his presumed exposure to herbicides? The Board also instructed that the examiner MUST address the Veteran’s credible and competent reports of throat discomfort in service and continued problems with his tonsils and throat since service. Pursuant to a November 2020 Board remand, the Veteran was afforded a VA addendum opinion in December 2020. The examiner expressed that the Veteran’s risk factors for the Veteran’s tonsillar cancer include the Veteran’s male sex and the Veteran’s history of alcohol and nicotine consumption. The examiner also noted poor dental hygiene can also be a risk factor as the Veteran’s neck mass first manifested as tooth pain. The examiner reported that additional risk factors for squamous cell carcinoma of the tonsil is exposure to asbestos and human papillomavirus (HPV).The examiner stated that it was unknown whether the Veteran was significantly exposed to asbestos and that there is no HPV testing recorded in the medical record. The examiner stated that dioxin and Agent Orange are not risk factors. The examiner expressed that it is probable that the history of alcohol and nicotine caused and/or increased the Veteran’s risk of tonsillar cancer, because those are the most common causes. The examiner opined that it is not probable that Agent Orange or dioxins caused his tonsillar cancer because there is no scientific evidence of for a cause and effect relationship. Unfortunately, the Board finds that the December 2020 VA opinion is inadequate. First, the Board notes that the examiner did not apply the correct legal standard of “at least as likely as not.” Second, the VA examiner failed to discuss the “Veteran’s credible and competent reports of throat discomfort in service and continued problems with his tonsils and throat since service” as requested by the November 2020 Board remand. Finally, it is unclear as to whether the December 2020 addendum opinion was obtained from a VA examiner other than the examiner who conducted the Veteran’s April 2018 VA examination. Here, the author of the April 2018 VA examination was J. Alek. The September 2020 VA opinion was authored by A. Schechter, however, in its opinion summary, it was noted that J. Alek reviewed the claims file, including her April 2018 opinion, and reported no change. The December 2020 author was also noted to be A. Schechter. Thus, it is unclear as to whether a different examiner provided the December 2020 opinion. Given these deficiencies, the Board finds the medical opinion to be inadequate. As such, the Board must again remand this matter to obtain and addendum opinion incompliance with the Court’s orders. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate VA clinician, other than J. Alek and A. Schecther, for the issuance of a medical opinion regarding the nature and etiology of the Veteran’s tonsillar cancer. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The clinician should opine on the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s tonsillar squamous cell cancer is etiologically related to the Veteran’s period of active service, to include as a result of his conceded exposure to herbicides, given his medical history, family history, absence of other risk factors, etc.? The examiner MUST address the Veteran’s credible and competent reports of throat discomfort in service and continued problems with his tonsils and throat since service. 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. As noted above, the Board seeks a medical opinion on the likelihood that this Veteran’s tonsillar squamous cell cancer is related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for this Veteran’s tonsillar squamous cell cancer. In noting any risk factors for tonsillar squamous cell cancer, the examiner must explicitly discuss whether the Veteran exhibits these risk factors and why they are more likely the cause of his tonsillar squamous cell cancer than his presumed herbicide exposure. 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. (Continued on the next page)   The examiner is advised that a medical opinion which concludes that a disease is not related to service solely because there is absence of medical records is inadequate. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.) LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.