Citation Nr: 21032304
Decision Date: 05/26/21	Archive Date: 05/26/21

DOCKET NO. 12-15 837
DATE: May 26, 2021

REMANDED

Entitlement to service connection for squamous cell cancer of the throat, to include as due to herbicide agent exposure, is remanded.

REASONS FOR REMAND

In a February decision, see 02/11/2020 BVA Decision, the Board denied the appeal, and the Veteran appealed to the Court of Appeals for Veterans Claims (Court). While the appeal was pending, in January 2021, the Veteran, through counsel, and the Secretary, VA, agreed to and submitted a Joint Motion for Remand (JMR). See 01/19/2021 CAVC Decision, P. 2-9. In an Order also dated in January 2021, the Court granted the JMR, vacated the February 2020 Board decision and remanded the case to the Board for further review consistent with the JMR. Id. P. 10. 

Entitlement to service connection for squamous cell cancer of the throat, to include as due to herbicide agent exposure, is remanded.

The consensus of the parties in the JMR was that the Board relied on a medical opinion that was inadequate. Specifically, the medical examiner's rationale for a negative nexus opinion was essentially because squamous cell cancer of the throat because the National Academy of Sciences (NAS) does not deem the evidence is substantive enough to add the disease to the list of diseases deemed associated with presumed exposure to herbicide agents. Id. P. 5-6; see also 08/26/2019 C&P Exam. Hence, another opinion is needed to comply with the JMR.

The matters are REMANDED for the following action:

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Send the claims file to the clinician who provided the August 2019 addendum opinion, or to an comparably qualified clinician for an addendum or review of the claims file and a nexus opinion as appropriate. As before, ask the reviewing examiner to opine on whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's squamous cell carcinoma of the throat/tonsil is causally related to service, including conceded exposure to herbicide agents in the Republic of Vietnam (RVN).

Inform the reviewing clinician that basing a negative nexus opinion solely on the NAS Updates will be deemed an inadequate rationale per se. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Instead, a full explanation must be provided for any opinion rendered. A full explanation must include a discussion of the September 2009 opinion of the Veteran's treating oncologist, the relevant medical literature, and how it relates to the Veteran's history, to include his service treatment records (STRs) [i.e., the Veteran's throat-related complaints in March and July 1970 (05/11/2009 STR-MED, P. 11-12, 25, 26)].

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.