Citation Nr: 21025801 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-16 092 DATE: April 29, 2021 REMANDED Entitlement to service connection for hypopharynx cancer, to include as secondary to in-service radiation, herbicide, and asbestos exposures, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to December 1970, to include verified service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision. In June 2019, the Veteran testified at a Board videoconference hearing at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. The Board denied the claim on appeal in a January 2020 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion) in November 2020, which was granted by Order of the Court in December 2020. Entitlement to service connection for hypopharynx cancer, to include as secondary to in-service radiation, herbicide, and asbestos exposures, is remanded. In the November 2020 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases in the January 2020 decision, specifically with regard to the rejection of the March 2013 private medical opinion and with regard to the failure to discuss the challenges to the qualifications of the November 2011 VA medical examiner. It was noted that the Board did not discuss the portions of the March 2013 private physician’s opinion that the oral, nasal, and hypopharynx share a similar mucosa as well as his discussion of his meta-analysis of the literature concerning cancer in the region as it related to Agent Orange. It was further highlighted that the Board provided no discussion as to whether the presumption of competence of the November 2011 VA examiner had been rebutted. The Board has given full consideration to the divergent findings in the November 2011 VA examiner’s opinion and the March 2013 private medical opinion as well the challenges raised as to the competency of the November 2011 VA examiner. Given the unique facts in this case as well as the matters raised in the Joint Motion, the Board has determined that the issue under consideration poses a medical problem of such complexity, an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109 (2012); 38 C.F.R. § 3.328 (2020). For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand in order to obtain an adequate medical opinion to clarify whether the Veteran’s claimed hypopharynx cancer was causally related to events during his military service, to include conceded in-service herbicide and asbestos exposures. The matter is REMANDED for the following actions: 1. Obtain an advisory opinion from an independent medical expert to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed hypopharynx cancer (a form of cancer that is not one of the applicable diseases warranting presumptive service connection for Agent Orange) was causally related to his military service, to include as due to his conceded in-service herbicide and/or asbestos exposures. The electronic claims file must be made available to the expert, and the expert must specify in the medical opinion that the file has been reviewed. In so doing, the expert must discuss and acknowledge the findings in the post-service private treatment records (particularly the private physician statement dated in March 2012 suggestive of a possible relationship between the Veteran’s claimed disorder and presumed in-service herbicide exposure), the March 2013 private medical opinion from C. N. B., M. D., the November 2011 VA examination report, and the Veteran’s June 2019 Board hearing testimony and lay assertions (including his clarification concerning his smoking history and cessation). The expert is informed that VA regulations do not preclude the Veteran from establishing service connection for hypopharynx cancer with proof of actual direct causation. In addition, the expert should specifically discuss and reconcile their medical opinion with the conclusions made in the March 2013 private medical opinion from C. N. B., M.D., to include his statement that the oral, nasal, and hypopharynx share a similar mucosa as well as his discussion of his meta-analysis of literature concerning cancer in the region as it related to Agent Orange. A complete rationale for all opinions must be provided. If the expert cannot provide a requested opinion without resorting to speculation, it must be so stated, and the expert must provide the reasons why an opinion would require speculation. The expert must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the expert must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the March 2016 SOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.