Citation Nr: A24067167 Decision Date: 10/18/24 Archive Date: 10/18/24 DOCKET NO. 220727-261911 DATE: October 18, 2024 REMANDED The issue of entitlement to service connection for squamous cell carcinoma (SCC) of right tongue base with neck metastasis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to August 1970. In April 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issue of entitlement to service connection for SCC of the right tongue base with neck metastasis most recently addressed in a June 2019 rating decision. In July 2022, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the July 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). The Veteran contends that he has SCC of the right tongue base with neck metastasis as a result of his acknowledged exposure to herbicides due to his service in the Republic of Vietnam. The evidence of record includes private treatment records from November 1996 showing a diagnosis for SCC of the right tongue base. In support of his claim, the Veteran submitted a May 2019 private medical opinion indicating that his oral SCC is due to his exposure to herbicides while in service. The private physician noted that the Veteran "had no other risk factors" other than his herbicide exposure. In a February 2022 opinion, the same private physician opined that the Veteran's oral SCC was due to his herbicide exposure in service, citing to scientific evidence found in The National Academies of Science report "Veterans and Agent Orange." Although these private opinions seem to link the Veteran's SCC of the tongue with neck metastasis to his service, they do not provide an adequate rationale regarding how the Veteran's disability is due to his service. The opinions suggest that the Veteran had no other risk factors for his cancer other than his herbicide exposure, but do not explain how the Veteran's exposure led to his current disability. Additionally, although the February 2022 opinion mentioned a study by The National Academies of Sciences, it did not explain how the study supported the Veteran's claim in this case. Further, based on cumulative scientific data reported by the National Academies of Science since 1993, the Secretary has determined that cancers of the oral cavity, including the tongue, have no positive association with herbicide exposure. The issue of entitlement to service connection for SCC of the right tongue base with neck metastasis is remanded to correct a duty to assist error that occurred prior to the July 2022 rating decision on appeal. The AOJ did not obtain a medical opinion to determine the nature and etiology of his disability, even though the evidence of record indicated a nexus between his disability and his acknowledged exposure to herbicides in service. As such, the issue must be remanded for a VA examination. The matters are REMANDED for the following action: Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to Is the Veteran's SCC of the right tongue base with neck metastasis related to service, including his acknowledged exposure to herbicides? If the reviewing health care provider finds that a physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. Provide a rationale to support the opinion(s). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.