Citation Nr: 22014270 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-28 260A DATE: March 12, 2022 REMANDED Entitlement to service connection for squamous cell carcinoma of the tonsil, including as due to herbicide exposure, is remanded. Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1968 to December 1970. The Veteran passed away in October 2012, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Appellant testified at a hearing before the undersigned. In October 2018 and May 2021, the Board remanded the claims for additional development. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) 1. Entitlement to service connection for squamous cell carcinoma of the tonsil, including as due to herbicide exposure, is remanded. Here the Appellant seeks entitlement to service connection for the Veteran's tonsillar cancer, including as due to exposure to herbicide agents. The evidence of record documents the Veteran was diagnosed with tonsillar cancer prior to his death. His exposure to herbicide agents during service in Vietnam is conceded. Although tonsillar cancer is not presumptively linked to this exposure, the inapplicability of a presumptive provision does not foreclose the possibility of service connection. See 38 C.F.R. § 3.309(e); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In May 2021, the Board considered a July 2019 VA examiner's opinion that the Veteran's squamous cell cancer of the tonsil was less likely than not due to his conceded herbicide exposure. The examiner indicated scientific studies, including the National Academy of Sciences Veterans and Agent Orange 2018 Update, suggested a link between the claimed condition and herbicide exposure. The examiner also suggested the level of the Veteran's exposure to herbicides might determine whether a causal link could be established. The Board remanded the claim and asked for an addendum opinion. If the examiner determined that a certain level of herbicide exposure was associated with the development of squamous cell carcinoma of the tonsil, a full explanation for this finding was required. In May 2021, an addendum opinion was provided. The examiner again opined the Veteran's exposure to herbicide agents was not causally related to his tonsillar cancer. He stated scientific studies did not suggest a causal link between tonsillar cancer and exposure to herbicide agents. He also noted the Veteran had additional risk factors (tobacco and alcohol use) which were associated with tonsillar cancer. However, in support of this opinion, the examiner appears to have dismissed or discounted the Veteran's conceded exposure to herbicide agents. The examiner stated the service treatment records did not document symptoms (skin irritation, allergic dermatitis, chloracne, porphyria, gastro-intestinal disturbance) associated with acute exposure herbicide agents. He observed specific information about the Veteran's exposure to herbicide agents was not available on the Individual Longitudinal Exposure Record (ILER). Finally, he stated "[t]he presence of a chemical agent in a location neither confirms exposure to that agent, nor more importantly, the amount of exposure if any of that agent, and therefor without cumulative dose of exposure to herbicide, scientific validation of the causation of injury, disease development, or chronic disability of potentially associated health effects cannot occur, including the development of tonsillar carcinoma." Here, the Veteran's exposure to herbicide agents is conceded based on his service in Vietnam. Specific in-service symptoms, a lack of information on ILER, or the lack of specific confirmation of the Veteran's exposure does not negate his conceded exposure. Accordingly, the examiner's opinion appears to be based on an inaccurate medical history. The opinion remains inadequate to evaluate the claim. See Stefl, supra. 2. Entitlement to service connection for a back disorder is remanded. The Appellant seeks entitlement to service connection for the Veteran's back disability. A December 2010 VA spine examination diagnosed thoracolumbar spondylosis with lumbar disc bulge L5-S1. The service treatment records document reports of back pain for three months in January 1969 and back pain following a motor vehicle accident in July 1970. During a December 1970 separation physical, the Veteran reported recurrent back pain since the accident although full range of motion was observed. In July 2019, a VA examiner opined the service treatment records indicated "soft tissue" injuries, but not trauma to the vertebrae or discs. These injuries were less likely than not related to the diagnosed degenerative disc and degenerative joint disease. The Board found the examiner had not provided supporting rationale to explain how he determined that the in-service injuries did not impact the Veteran's vertebrae and discs. This examiner also stated the National Academy of Sciences Veterans and Agent Orange 2018 Update found "sufficient evidence to suggest an associative causality between herbicide exposure the development of degenerative spondylosis." The Board observed the examiner had not provided an opinion as to whether the Veteran's back disability was causally related to his conceded in-service herbicide exposure. In May 2021, an addendum opinion was provided. The examiner again opined the Veteran's back disability was less likely than not causally related to the Veteran's military service, including the July 1970 motor vehicle accident and conceded exposure to herbicide agents. The examiner found the service treatment records documented mild back symptoms, without evidence of decreased range of motion or radicular symptoms, in January 1969 or July 1970. He explained the recorded symptomatology suggested a soft tissue injury. He also noted the December 1970 separation examination documented the Veteran's report of recurrent pain with lifting and being in certain positions, but no abnormalities were observed on physical examination. The examiner stated, at separation, "[t]he absence of abnormality or current condition is evidence that the is no ongoing back condition related to the 1969 or 1970 events." However, the Veteran reported back pain at separation. As a layperson, he is competent to report pain. In finding no abnormality or current back condition was present at separation, the examiner dismissed the Veteran's report of pain without an explanation for doing so. The opinion appears to be based on an incomplete medical history. In May 2021, the examiner also stated the National Academy of Sciences Veterans and Agent Orange 2018 Update did not indicate a causal link between herbicide exposure and the development of degenerative spondylosis. This is inconsistent with the information he provided in July 2019 etiology opinion. No explanation for the inconsistency was provided. The addendum opinion is inadequate to evaluate the claim. Id. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain an addendum opinion from an appropriate clinician (who has not previously reviewed the claims) regarding whether the Veteran's squamous cell carcinoma of the tonsil is at least as likely as not related to his active service, including conceded exposure to herbicide agents. The examiner should explain the general medical understanding of any link or suspected link between herbicide exposure and tonsillar cancer. He or she should also explain whether any such link is indicated in the National Academy of Sciences Veterans and Agent Orange 2018 Update. The examiner should review the entire claims file. He or she must discuss the significance, if any, of the copies of Board decisions for other Veterans (as submitted in November 2012). The examiner must provide a complete rationale for all opinions expressed. Simply stating squamous cell carcinoma of the tonsils is not presumptively linked to herbicide exposure, without additional supporting rationale, will be found insufficient. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's back condition is at least as likely as not related to in-service back symptoms and injuries as noted in January 1969, July 1970, and on separation in December 1970. If the examiner dismisses any reports of in-service back pain or other observable symptomatology, a complete rationale for doing so must be provided. The examiner is asked to explain the general medical understanding as to whether there are any causal links between herbicide agents and back disabilities. He or she should also explain whether any such link is indicated in the National Academy of Sciences Veterans and Agent Orange 2018 Update. A complete rationale for all opinions expressed must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.