Citation Nr: 21013485 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-31 732 DATE: March 9, 2021 REMANDED Entitlement to service connection for nasopharyngeal cancer/nasopharynx carcinoma due to herbicide agent exposure is remanded. Entitlement to service connection for left arm loss of motion as secondary to nasopharyngeal cancer/nasopharynx carcinoma treatment is remanded. Entitlement to service connection for lung aspiration as secondary to nasopharyngeal cancer/nasopharynx carcinoma is remanded. Entitlement to service connection for use of a feeding tube associated with lung aspiration, secondary to nasopharyngeal cancer/nasopharynx carcinoma, is remanded. Entitlement to service connection for loss of teeth as secondary to nasopharyngeal cancer/nasopharynx carcinoma treatment is remanded. Entitlement to service connection for hearing loss, to include as secondary to treatment for cancer, is remanded. Entitlement to service connection for tinnitus as secondary to the nasopharyngeal cancer/nasopharynx carcinoma, is remanded. Entitlement to service connection for respiratory cancer is remanded. Entitlement to service connection for a skin disability, to include chloracne, eczema, and dermatitis, due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968, to include service in the Republic of Vietnam. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a February 2015 Department of Veterans Affairs (VA) Regional Office’s (RO) rating decision. Unfortunately, the Veteran died in May 2017. The appellant in this case is the Veteran’s surviving spouse. The appellant requested to be substituted into the Veteran’s place, which was approved by the RO in March 2018. When a veteran dies after October 10, 2008, and there is already a substitute claimant, the appeal proceeds normally because the substitute steps into the deceased veteran’s shoes. See 38 C.F.R. § 3.1010(a). In January 2019, the Appellant testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. This matter previously has been before the Board in July 2019. The Board reopened the service connection claims for a skin, nasopharyngeal cancer/nasopharynx carcinoma, bilateral hearing loss, and tinnitus were reopened, and all the claims on appeal were remanded for further development. 1. Entitlement to service connection for nasopharyngeal cancer/nasopharynx carcinoma due to herbicide agent exposure is remanded; 2. Entitlement to service connection for left arm loss of motion, secondary to nasopharyngeal cancer/nasopharynx carcinoma treatment, is remanded; 3. Entitlement to service connection for lung aspiration, secondary to nasopharyngeal cancer/nasopharynx carcinoma, is remanded; 4. Entitlement to service connection for use of a feeding tube associated with lung aspiration, secondary to nasopharyngeal cancer/nasopharynx carcinoma, is remanded; and 5. Entitlement to service connection for loss of teeth as secondary to nasopharyngeal cancer/nasopharynx carcinoma treatment, is remanded. The Board regrets the additional delay, but unfortunately, the claims must again be remanded for further development and to address the Board’s July 2019 remand directives in full. First, the Board directed that the Appellant be afforded the opportunity to submit any additional evidence from the Veteran’s private physician, Dr. J.M.P., to further explain why the physician believed that the Veteran’s nasopharyngeal carcinoma was due to herbicide agent exposure. The Appellant submitted a release of information for Dr. J.M.P. in September 2020, but the RO did not request these records before returning the claim to the Board. On remand, these records should be requested, and if obtained, associated with the claims file. An addendum medical opinion was also obtained while on remand in September 2020 from a VA physician. The VA physician concluded that the Veteran was diagnosed with nasopharyngeal cancer at a typical age of 44 years old. The physician noted the Veteran worked as a pipe fitter in shipyards after service and was probably exposed to Asbestos. The physician noted that the medical evidence clearly supported the Veteran’s contention that the chronic dry mouth, teeth loss, and aspiration pneumonia with a feeding tube were residuals of the radiation treatment for the nasopharyngeal cancer/nasopharynx carcinoma. The physician read the May 2015 opinion of the Veteran’s treating oncologist which related the nasopharyngeal cancer to herbicide agent exposure; however, the medical literature, which was summarized in the report, did not support a link between nasopharyngeal cancer and herbicide agent exposure. The physician also noted that the medical literature moderately linked nasopharyngeal cancer to Asbestos exposure. Based on the above, the examiner concluded it was less likely than not that the nasopharyngeal cancer, to include its residuals, were related to herbicide agent exposure in service. Unfortunately, the examiner did not address all the Board’s remand directives in the September 2020 VA medical opinion. Specifically, the examiner was asked to determine if nasopharyngeal cancer/nasopharynx carcinoma was a soft tissue cancer, which may be presumptively related to herbicide agent exposure under 38 C.F.R. § 3.309. See also May 2015 private treatment record (indicating nasopharyngeal cancer/nasopharynx carcinoma is a soft tissue cancer). A Board remand confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional addendum opinion should be obtained to address this claim. The remaining service connection claims on a secondary basis as residuals of the radiation therapy to treat the nasopharyngeal cancer/nasopharynx carcinoma, to include loss of left arm range of motion due to neck resection, loss of teeth, chronic dry mouth, lung aspiration/pneumonia, and use of a feeding tube are also remanded as inextricably intertwined with the primary service connection claim for the nasopharyngeal cancer/nasopharynx carcinoma. As to the loss of left arm range of motion, the examiner found that there was no mention in the medical records that the Veteran exhibited loss of motion in the left arm; however, the examiner did not address the Appellant’s January 2019 Board hearing testimony and the Veteran’s contentions that the left neck resection, due to recurrence of the nasopharyngeal cancer/nasopharynx carcinoma, caused him to be unable to lift his left arm. On remand, an additional addendum opinion should be obtained to address this evidence. 6. Entitlement to service connection for hearing loss, to include as secondary to radiation treatment for nasopharyngeal cancer/nasopharynx carcinoma, is remanded; and 7. Entitlement to service connection for tinnitus, to include as secondary to the radiation treatment for nasopharyngeal cancer/nasopharynx carcinoma, is remanded. As discussed above, additional record development based on the September 2020 release of information for Dr. J.M.P. was not undertaken, and a remand to obtain these records is warranted. An addendum medical opinion as to the etiology of the bilateral hearing loss and tinnitus was obtained in September 2020. The examiner provided a positive nexus between the hearing loss and tinnitus to the radiation therapy for the treatment of the nasopharyngeal cancer/nasopharynx carcinoma. Nevertheless, the service connection claim for the nasopharyngeal cancer/nasopharynx carcinoma has not yet succeeded, and until the appellant prevails, the Board must address all theories of possible entitlement to service connection. The record also contains contentions that the Veteran’s hearing loss and tinnitus had onset during service and continued since discharge from service. As to direct service connection, the September 2020 physician relied solely on the conclusions and rationale provided by the July 2008 VA examiner, which has been determined to be inadequate in its current form as it was solely based on a lack of a negative shift in hearing acuity during service. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); Dalton v. Nicholson, 21 Vet. App. 23 (2007); 38 C.F.R. § 3.303(d), 3.307, 3.309. Thus, on remand, an additional addendum opinion must be obtained to address this deficiency and to consider and discuss the Veteran’s contentions. 8. Entitlement to service connection for respiratory cancer is remanded. As discussed above, additional record development based on the September 2020 release of information for Dr. J.M.P. was not undertaken, and a remand to obtain these records is warranted. An addendum medical opinion was obtained in September 2020 to determine if the Veteran had a currently diagnosed respiratory cancer. The examiner found that there was no clinical diagnosis or treatment for respiratory cancer. The examiner also indicated that multiple CT scans and chest x-ray studies did not note any indicators of respiratory cancer, except one chest x-ray that made a “vague mention of a possible nodule on one view… which had not grown or changed in years.” However, the examiner did not explain why one mention of a lung nodule on one chest x-ray view that had not changed in years ruled out a diagnosis of a respiratory cancer. On remand, a further explanation of the conclusion should be provided. 9. Entitlement to service connection for a skin disability, to include chloracne, eczema, and dermatitis, as due to herbicide agent exposure, is remanded. As discussed above, additional record development based on the September 2020 release of information for Dr. J.M.P. was not undertaken, and a remand to obtain these records is warranted. An addendum medical opinion was obtained in September 2020 as to the nature and etiology of a skin disability, to include exposure to herbicide agents in service. The September 2020 medical opinion found there was “no mention of ANY CHRONIC skin condition following service” (emphasis in original). This is factually inaccurate. See March 1992 VA Agent Orange examination; Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Furthermore, the examiner was directed to address the Veteran’s competent reports of a chronic red, blotchy rash and lesions since discharge from service, and the examiner failed to do so. Additionally, the examiner noted there was only one note of tinea corporis in service, which was “a very self-limiting fungal infection.” However, the examiner did not address an October 1991 skin reactivity test that was positive for trichophyton (a fungus). A remand is required to address these issues. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Request outstanding pertinent records associated with the September 2020 release of information for Dr. J.M.P. and associate any records obtained with the claims file. 2. Then, obtain a VA addendum opinion from an appropriate clinician to discuss whether the nasopharyngeal cancer/nasopharynx carcinoma is a “soft tissue cancer.” See May 2015 private oncologist’s report, found in VBMS entry entitled “Medical Treatment Record – Non-Governmental Facility” scanned on July 16, 2015 (page 6); see also January 2019 Hearing Transcript. *A copy of the claims file and a copy of this remand, in its entirety, should be made available to the examiner, who must acknowledge receipt and review of these materials. *A complete rationale explaining each conclusion must be provided. 3. Obtain an addendum medical opinion from an appropriate clinician as to etiology of the loss of left arm motion. Specifically, provide an opinion as to whether the Veteran had loss of range of motion of the left arm as a residual of the left neck resection as treatment of the nasopharyngeal cancer/nasopharynx carcinoma. The appellant’s testimony and the Veteran’s contentions must be addressed, even if no medical documentation of left arm loss of motion is found. See January 2019 hearing transcript. *A copy of the claims file and a copy of this remand, in its entirety, should be made available to the examiner, who must acknowledge receipt and review of these materials. 4. Obtain a VA addendum opinion as to the nature and etiology of the hearing loss and tinnitus. *A copy of the claims file and a copy of this remand, in its entirety, should be made available to the examiner, who must acknowledge receipt and review of these materials. After a thorough review of the claims file, provide an opinion as to whether the currently diagnosed tinnitus and bilateral hearing loss had onset during or was otherwise related to service. *The examiner is reminded that a negative nexus opinion cannot be solely based on a lack of diagnosed hearing loss or lack of complaints of hearing loss in service. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); Dalton v. Nicholson, 21 Vet. App. 23 (2007); 38 C.F.R. § 3.303(d), 3.307, 3.309. 5. Obtain an addendum opinion from an appropriate clinician as to whether the Veteran had a currently diagnosed respiratory cancer. A complete explanation of why a possible lung nodule, visualized on one chest x-ray but not on multiple additional CT scans and chest x-rays, that did not grow or change over time indicates that the Veteran did not have a currently diagnosed respiratory cancer. *A copy of the claims file and a copy of this remand, in its entirety, should be made available to the examiner, who must acknowledge receipt and review of these materials. 6. Obtain an additional addendum opinion from an appropriate clinician as to the nature and etiology of a skin disability, to include chronic dermatitis, eczema, and chloracne. See March 1992 VA Agent Orange examination physical findings and diagnoses of eczema and chronic dermatitis. *A copy of the claims file and a copy of this remand, in its entirety, should be made available to the examiner, who must acknowledge receipt and review of these materials. After a thorough review of the claims file, the examiner should address the following: a) Identify any diagnosed skin disorder, to include chronic dermatitis, chloracne, and eczema, recognizing that these conditions may wax and wane. Address the Veteran’s competent descriptions of having a red, blotchy rash and lesions since discharge from service. *The physical findings of lesions around his waist, left elbow, and both ankles with diagnoses of chronic dermatitis and eczema in the March 1992 VA Agent Orange examination must be reviewed and addressed. *The October 1991 skin reactivity test showing the Veteran was positive for trichophyton (a fungus) must also be discussed. (Continued on the next page)   b) Provide a medical opinion as to whether it is at least as likely as not that any currently diagnosed skin disability was related to active service, to include conceded herbicide agent exposure. 7. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.