Citation Nr: 21024228 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-27 367 DATE: April 22, 2021 REMANDED The issue of entitlement to service connection for squamous cell cancer of the lungs, to include as due to in-service exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to March 1969. The Veteran died in July 2019. The appellant is the Veteran’s surviving spouse This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in December 2019. The case has been returned to the Board for review. Entitlement to service connection for squamous cell cancer of the lungs is remanded. The appellant contends that the Veteran’s squamous cell cancer of the lungs is directly related to his active service. Specifically, the appellant contends that the Veteran’s squamous cell cancer of the lungs is due to his presumed exposure to herbicide agents while serving in Vietnam. In its December 2019 remand, the Board directed the AOJ to provide a VA examination to determine the etiology of the Veteran’s squamous cell cancer, to include his presumed exposure to herbicide agents. The Board further directed the VA examiner to address three medical opinions in the record that raise the possibility that the Veteran’s tongue/head/neck cancer (which later metastasized to his lungs) was related to exposure to herbicide agents. A VA opinion was provided in February 2020. The February 2020 VA examiner reviewed the record and opined that it is less likely than not that the Veteran’s squamous cell lung cancer was caused by his in-service exposure to herbicide agents. As rationale, the VA examiner explained that the latest research concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to herbicide agents and oral, oropharyngeal, or nasopharynx cancers. The VA examiner further explained that the Veteran’s malignancy was most likely associated with HPV as demonstrated by pathology. However, the VA examiner did not address the three medical opinions in the record that raise the possibility that the Veteran’s malignancy was possibly related to exposure to herbicide agents as directed by the December 2019 Board remand. Hence, the February 2020 VA examination does not substantially comply with the Board’s December 2019 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand) The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the February 2020 VA opinion, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. Following review of the record, the examiner should express an opinion as to: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s squamous cell lung cancer was related to active service, to include, but not limited exposure to herbicides? The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive direct incurrence basis. (b.) The examiner should address the August 2015, September 2015 and two June 2019 opinions provided by Dr. P. T., Dr. S. C., Dr. P. F., and Dr. J. A., raising the possibility that the Veteran’s tongue/head/neck cancer (which later metastasized to his lungs) was related to exposure to herbicides. (Continued on the next page)   The examiner must provide a complete rationale for any opinion provided. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for squamous cell cancer of the lungs may be granted. If the benefit sought remains denied, furnish the appellant and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.