Citation Nr: 21011098 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-40 072 DATE: February 26, 2021 REMANDED Entitlement to service connection for thyroid cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypothyroidism as a residual of thyroid cancer is remanded. Entitlement to service connection for a scar as a residual of thyroid cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1968 to May 1971. The Board remanded the case for additional evidentiary development in July 2019, and it has been returned to the Board for appellate review. 1. Entitlement to service connection for thyroid cancer thyroid cancer, to include as due to herbicide exposure The Board acknowledges that the Veteran’s exposure to herbicides during his period of active service is presumed, as determined by the Agency of Original Jurisdiction (AOJ) in the September 2016 VA rating decision and noted in the July 2019 Board remand. Since thyroid cancer is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), consideration of service connection for thyroid cancer remains available on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Pursuant to the July 2019 Board remand directives, the Veteran was afforded VA Disability Benefits Questionnaire (DBQ) examinations for thyroid and parathyroid conditions and for scars/disfigurement in December 2019 by the same examiner. The VA examiner noted the Veteran’s thyroid cancer in 2016 is not currently active and current residuals from the left thyroid lobectomy to treat thyroid cancer include hypothyroidism and a surgical scar. While the VA examiner concluded the claimed condition (thyroid cancer) was less likely than not incurred in or caused by the claimed in-service injury, event or illness, the rationale provided solely relied on the notion that “thyroid cancer is not a recognized outcome of [herbicide] exposure.” The Board finds this rationale is inadequate because did not specifically address consideration of the Veteran’s presumed herbicide exposure on a direct basis. “[A] remand by... the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the July 2019 remand is necessary prior to appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. 2. Entitlement to service connection for hypothyroidism as a residual of thyroid cancer 3. Entitlement to service connection for a scar as a residual of thyroid cancer While the Board remands the issue of entitlement to service connection for thyroid cancer for additional evidentiary development, as discussed above, that decision may impact these claims for hypothyroidism and scar as residuals of thyroid cancer on a secondary basis. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s thyroid cancer. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s thyroid cancer (even if now resolved) began during active service or is related to an incident of service, to include his presumed herbicide exposure. Note - It is not sufficient to provide an opinion that the Veteran’s thyroid cancer was not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.