Citation Nr: 21025172 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-08 477 DATE: April 27, 2021 REMANDED Entitlement to service connection for tonsillar squamous cell carcinoma, to include as due to herbicide exposure, is remanded. Entitlement to service connection for dysphagia, to include as secondary to tonsillar squamous cell carcinoma, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to September 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA). The Board denied the claim in a February 2019 decision. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court vacated the above-noted issues and remanded the matter to the Board for development consistent with the parties’ Joint Motion for Partial Remand (Joint Motion). The claim was most recently before the Board in July 2020 when it was remanded to provide the Veteran with a new VA examination and obtain an adequate examiner’s opinion. There has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). In February 2021, a VA examiner opined that the Veteran’s tonsillar squamous cell carcinoma was less likely than not related to service, to include exposure to herbicide agents. However, the opinion is inadequate to decide the claim. The examiner noted that the Veteran’s type of cancer is not recognized by VA regulations as a disability subject to presumptive service connection. However, the only apparent basis provided for the negative opinion is the passage of time between active service and his cancer diagnosis. The examiner failed to explain why this passage of time would weigh against finding that the Veteran’s conceded exposure to herbicides in service may have caused his cancer. The claim is again remanded to obtain an adequate medical opinion that addresses whether the Veteran’s tonsillar squamous cell carcinoma was at least as likely as not the result of his conceded in-service herbicide exposure. The examiner must address whether this type of cancer may still be the result of in-service exposure to herbicides on a direct basis even though it is not subject to presumptive service connection. Adjudication of the intertwined dysphagia claim will be deferred until the other service connection issue is adjudicated. See Harris v. Derwinski, 1 Vet. App. at 183 (1990). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of tonsillar squamous cell carcinoma. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Is it at least as likely as not that the Veteran’s tonsillar squamous cell carcinoma (i) had its onset in service, or (ii) was otherwise related to active duty service, to include the Veteran’s conceded exposure to herbicides while stationed in Vietnam. The examiner is specifically instructed that service connection could still be established if the evidence shows that tonsillar squamous cell carcinoma was, in fact, caused by exposure to herbicides or some other incident of service despite not qualifying for service connection on a presumptive basis under VA regulations. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The examiner is asked to provide an explanatory rationale for the conclusion reached that is based on the evidence of record and sound medical principles. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined service connection claim for dysphagia. J. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.