Citation Nr: 21022420 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-22 903A DATE: April 15, 2021 REMANDED Entitlement to service connection for squamous cell cancer (SCC) of the right ear, scalp, nose, cheek, lip, left and right arms and torso to include as secondary to non-Hodgkin’s lymphoma is remanded. REASONS FOR REMAND The Veteran served in the United States Army from March 1960 to March 1963. The Veteran died in November 2019. The Veteran’s surviving spouse was substituted as the appellant in February 2020. Theis matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This claim was previously remanded by the Board and in the absence of substantial compliance, the claim must be remanded. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App.268, 271 (1998). The Board has recharacterized the issue as noted above to best reflect the evidence of record and afford the appellant every consideration for her claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for SCC of the right ear, scalp, nose, cheek, lip, left and right arms and torso to include as secondary to non-Hodgkin’s lymphoma The Veteran contended that his squamous cell skin cancers were incurred in, aggravated by, or otherwise related to service. In an April 2015 statement the Veteran detailed that his military occupational specialty of a wheel vehicle mechanic required laying on grass that had been sprayed with chemical and herbicides in Korea to work under vehicles. The Board has conceded the Veteran’s exposure to degreasing solvents including TCE (trichloroethylene). The Veteran submitted a statement in August 2018 in which he noted that he was diagnosed with non-Hodgkin’s lymphoma in 2007, prostate cancer in 2017 and skin cancer in 2006. The Veteran indicated that this skin cancers had required multiple facial reconstruction surgeries and right ear removal which is consistent with a December 2012 neuro-oncology note from Moffitt Cancer Center that discussed SCC requiring multiple reconstructive surgeries, and an operative report documenting 2011 and 2012 Mohs repair with skin grafts and twice yearly encounters with the VA dermatology clinic from 2012 through 2019 for examinations, skin biopsies and excisions. A July 2019 skin diseases examination was conducted with the assistance of the Veteran’s daughter as the Veteran was on a ventilator. The examiner concluded that it was less likely than not that the Veteran’s squamous cell skin cancers (SCC) were due to the Veteran’s non-Hodgkin’s lymphoma. As rationale, the examiner indicated that SCC is the second most common form of skin cancer which is usually found on the head, neck, ears, lips, arms, legs and hands--areas of the body damaged by UV rays from the sun. The examiner noted that the Veteran was exposed to sun while in Vietnam (sic) and worked as a racecar driver and in construction, occupations which have greater than average sun exposure. Medical literature validates that SCC is due to prolonged sun exposure. The examiner concluded that there was no documentation that the Veterans SCCs were caused by treatment of the non-Hodgkin’s lymphoma. After the examination, the Veteran provided a peer-reviewed journal article, Aggressive Squamous Cell Carcinoma as a Harbinger of non-Hodgkin’s Lymphoma; JAAD CASE Report, 2018: 201, Oct: 4(9) 869-871 indicating that the relationship between non-Hodgkins lymphoma and SCC was well-established in the medical community. The Veteran submitted a statement in September 2019 that the ENT doctor at the VA Hospital that removed his right ear told him that non-Hodgkin’s lymphoma will cause skin cancer to be aggressive. The Veteran further indicated that he worked with his three brothers in construction framing and hanging drywall which is interior work which does not subject them to the sun. Each brother individually submitted a statement indicating that the four brothers had worked together in construction for 40 years and none of the other three brothers had developed any cancers. They indicated that the only difference between them and their brother was his service in the Army. In July and December 2019 medical opinions for the SCC issues on remand were obtained. However, although the remands specifically requested a “non-VA oncologist examiner,” the examiners selected were a general practice nurse practitioner and an internist, not specialty-trained in oncology, contrary to the remand directives of the Board. The nurse practitioner did not address in service potentially carcinogenic exposures and the internist provided a one sentence conclusory opinion. Neither opinion is adequate for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that the appellant is afforded every possible consideration. 38U.S.C. §5103A (2012); 38C.F.R. §3.159 (2019). The matters are REMANDED for the following action: 1. Request a medical opinion from a board-certified oncologist familiar with the treatment of non-Hodgkin’s lymphoma. 2. If an oncologist familiar with treating non-Hodgkin’s lymphoma is not available at VA, notify the appellant that VA is requesting an advisory medical opinion pursuant to 38 U.S.C.§5109 regarding entitlement to service connection for SCC. The entire claims file, including a copy of this Remand, must be made available to, and be reviewed by the advisory expert examiner. 3.The oncologist examiner preparing the medical or advisory opinion must address the following: (a) Whether it is at least as likely as not (50/50 probability or greater) that the Veteran’s SCC is a result of his exposure to degreasing solvents, including TCE, during service or, (b) Whether the Veteran’s SCC of the right ear, scalp, nose, lip, cheek, right and left arms and torso is at least as likely as not (50/50 probability or greater) a result of or was aggravated beyond its normal progression by the Veteran’s service-connected non-Hodgkin’s lymphoma. The examiner expert should address both whether the inherent disease process of non-Hodgkin’s lymphoma or chemotherapy and other treatments caused or aggravated the Veteran’s SCC. The attention of the oncologist examiner expert is directed to the medical article cited in the body of this remand, the Veteran’s lay statement regarding his chemical exposures in Korea, the amount of sun exposure involved in the type of work he performed after service, and the lay statements of his three brothers who worked alongside him for 40 years. The expert examiner is reminded that the Veteran is competent to convey events or symptoms observable by a layperson. If any statement of the Veteran is discounted or disregarded, the examiner should provide an explanation. (Continued on the next page)   The report should provide a fully articulated medical rationale for each opinion expressed and cite to any peer-reviewed medical literature referenced in formulating the opinion. If an opinion cannot be provided without resorting to speculation, it should be expressly indicated along with the reason this is so (e.g., lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual specialist). After completing the above, and any other development as may be indicated by any response received because of the actions taken in the preceding paragraphs, the appellant’s claims should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, furnish the appellant a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.