Citation Nr: 25004584 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 10-27 502 DATE: April 3, 2025 REMANDED Entitlement to an initial rating in excess of 10 percent for verrucous carcinoma of the right false vocal cord and residuals, excluding periods of temporary 100 percent rating, is remanded. REASONS FOR REMAND The Veteran served on active duty from February1967 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In August 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In February 2017, April 2020, April 2021, June 2022, and April 2023, the Board remanded this claim to the AOJ for additional action. 1. Entitlement to an initial rating in excess of 10 percent for verrucous carcinoma of the right false vocal cord and residuals, excluding periods of temporary 100 percent rating, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to an initial rating in excess of 10 percent for verrucous carcinoma of the right false vocal cord and residuals, excluding a period of temporary 100 percent rating. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In February 2017, the Board remanded this matter for a VA examination to determine the current severity of service-connected residuals of verrucous carcinoma of the right false vocal cord residuals. Subsequently, the Veteran underwent VA examination in June 2018. However, in April 2020, the Board found the June 2018 examination to be incomplete and remanded this matter for a VA examination to determine any change in the severity of the service-connected residuals of verrucous carcinoma of the right false vocal cord residuals. The Board specifically asked for the examination to be performed by an oncologist. In November 2020, a surgeon performed VA esophageal condition and sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination. Later in January 2021, a physician's assistant performed VA esophageal condition and sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination. In a February 2021 correspondence, the Veteran, through the representative, argued that there was not compliance with the April 2020 Board remand as the Veteran was not subsequently examined by an oncologist. In light of the Veteran's arguments, in April 2021, the Board again remanded this matter for a VA examination to determine any change in the severity of the service-connected residuals of verrucous carcinoma of the right false vocal cord residuals and, again, specifically asked for the examination to be performed by an oncologist. In July 2021, a Nurse Practitioner performed VA esophageal condition and sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination. Later in March 2022, a physician's assistant performed VA esophageal condition and sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination. In June 2022 and January 2023, the Board again remanded this matter for a VA examination to determine any change in the severity of the service-connected residuals of verrucous carcinoma of the right false vocal cord residuals. The Board specifically asked for the examination to be performed by an oncologist. In November 2024, a Nurse Practitioner performed VA sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination. To date, no oncologist has examined the Veteran in conjunction with the increased rating claim. Therefore, the Board must again find that there has not been substantial compliance with the April 2020, April 2021, June 2022, and January 2023 remand instructions. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). That is a pre-decisional duty to assist error. The Board notes that the claims file currently lacks an adequate examination of the service-connected disability for nearly a decade, through no fault of the Veteran, because of lack of substantial compliance with the Board remand requests. However, because of the complexities of the case and due to the prior Board remand, the Board again finds that further examination is needed to determine the current severity of service-connected verrucous carcinoma of the right false vocal cord residuals. If in-person VA examination, is not feasible, VA should off a telehealth appointment, and if that is not feasible, or the Veteran is unable to unwilling to attend further examination, the AOJ should obtain an opinion from an oncologist. The Veteran is notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences of not reporting for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file. All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 2. Schedule the Veteran for a VA examination with an oncologist, to determine the current severity of residuals of verrucous carcinoma of the right vocal cord. If the Veteran is unwilling to attend an examination, a telehealth examination should be offered. If the Veteran is unwilling to participate in a telehealth examination, the requested opinion must be obtained from an oncologist. The examiner must confirm being an oncologist. The Veteran need not appear for examination if the requested examiner is not an oncologist. (a.) Confirm that the examiner is an oncologist. If the examiner is not an oncologist, reschedule the examination with an oncologist. (b.) The oncologist should opine regarding the severity of residuals of verrucous carcinoma of the right vocal cord from April 2012 to present. The examiner must review the claims file, to include the Board remands and the hearing testimony before the Board. The examiner should note that review in the report. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The examiner should identify all symptoms and manifestations associated with service-connected verrucous carcinoma of the right vocal cord and residuals from April 2012 to the present, including, but not limited to any dyspnea, bronchitis, stenosis of the larynx, hoarseness, loss of voice, vocal fatigue, loss of taste, loss of appetite, weight loss, dysphagia with liquids and solids, and sleeplessness due to awakening by choking on excessive mucous in the throat. For each of those listed claimed symptoms, the examiner should specifically state whether that symptom is present or has been present during the pendency of this appeal. The examiner should also state whether there has been any active malignancy since November 2008. (c.) If the Veteran is unwilling to appear for examination, and unwilling to participate in a telehealth appointment, provide the requested opinions from an oncologist, based on review of the medical evidence of record and lay statements regarding symptomatology. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.