Citation Nr: 21028057 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 07-24 200A DATE: May 10, 2021 REMANDED The issue of entitlement to service connection for squamous cell carcinoma of the tongue pharynx (referred to as oropharyngeal cancer), claimed as throat cancer and oropharyngeal neoplasms, to include as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to February 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in August 2018 and October 2020. In the August 2018 remand, the Board requested that a VA examiner should provide an opinion as to whether the Veteran has or had HPV and whether the development of cancer is likely to be related to exposure to Agent Orange or another cause. The Board determined that a medical examiner specifically should identify additional information that would facilitate a more conclusive opinion. The Board provided instructions specifically asking whether the Veteran had HPV and whether HPV was the most likely causal factor in developing the Veteran's oropharyngeal cancer and if so why or why not. In the Veteran's January 2020 VA examination, the examiner found that the Veteran did not have a current diagnosis of HPV because there are no findings, signs, symptoms to support a diagnosis. The examiner also did not address whether the Veteran had an HPV diagnosis in his medical records prior to the Veteran's diagnosis of oropharyngeal cancer. The February 2020 VA examiner never addressed whether it is at least as likely as not that HPV could have caused the Veteran's squamous cell carcinoma. The examiner noted that increased risk is not enough to make an opinion that the Veteran had HPV prior to throat cancer beyond mere speculation. The examiner did not provide a thorough rationale as to what information was needed that could allow him to provide an opinion without mere speculation. In the October 2020 remand, the Board specifically asked for an addendum opinion from an appropriate clinician to determine whether it is at least as likely as not that the Veteran's squamous cell carcinoma of the tongue is related to his presumed herbicide exposure in service. The examiner was asked to address the Veteran's risk factors to include his history of smoking and quitting. In the Veteran's February 2021 VA examination, the examiner found that the Veteran had over 30 years of tobacco dependency, and that the Veteran quit over 7 years ago. The medical records indicate that the Veteran quit tobacco dependency in approximately 1992. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that the Veteran's extensive tobacco use indicates it likely caused the epithelial changes in his airways including the tongue and unfortunately what caused his squamous cell carcinoma. The examiner must provide an opinion specifically addressing whether it is at least as likely as not that the Veteran's squamous cell carcinoma of the tongue is related to his presumed herbicide exposure in service. The Board finds the examiner's opinion to be generalized and therefore inadequate. The Veteran claimed in his June 2007 statement in support of the claim that his squamous cell carcinoma is included under the category of soft tissue sarcoma under 38 U.S.C. § 3.309(e). While the Board acknowledges the Veteran's assertion, the Board finds that the Veteran is not competent to diagnose himself with soft tissue sarcoma nor to determine that the Veteran's squamous cell carcinoma is under the same category of soft tissue sarcoma. The Board provided specific remand instructions in the August 2018 remand and October 2020 remand, which the VA examiners did not comply. The examiner did not thoroughly address the issues of tobacco use, HPV, or herbicide exposure during service in the Republic of Vietnam. The examiner did not address the Veteran's medical history, family history, and other risk factors when giving an opinion of whether squamous cell carcinoma is service connected. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to consider the Veteran's medical history, family history and other risk factors. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician. If the examiner determines whether a physical examination is necessary to provide the requested opinions such should be scheduled. The examiner must address the following questions: (a) Is the Veteran's squamous cell carcinoma at least as likely as not (50 percent or greater probability) related to his presumed herbicide exposure in service? The examiner is advised that the opinion must clearly state whether the Veteran's squamous cell carcinoma is caused by or related to his herbicide exposure in service. (b) Is the Veteran's squamous cell carcinoma at least as likely as not (50 percent or greater probability) related to a current or previous diagnosis of HPV? The examiner is advised that the opinion must clearly state whether the Veteran's squamous cell carcinoma is caused by or related to HPV. (c) The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's squamous cell carcinoma of the tongue is related to his tobacco dependency. The examiner is advised that the opinion must clearly state whether the Veteran's squamous cell carcinoma is caused by or related to his tobacco dependency. The examiner is also asked to consider the time period since the Veteran quit tobacco dependency and whether that had an impact on the likelihood that the Veteran's squamous cell carcinoma is related to tobacco dependency. (Continued on the next page) 2. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. If the medical professional is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The medical professional must provide a thorough rationale for each opinion given. Sadia Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.