Citation Nr: 0118277 Decision Date: 07/12/01 Archive Date: 07/17/01 DOCKET NO. 98-06 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1970, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded this case back to the RO for further development in December 2000, and the case has since been returned to the Board. In a June 2001 statement, the veteran's representative waived his right to have newly received evidence be first considered by the RO. See 38 C.F.R. §§ 19.37, 20.1304 (2000). REMAND In December 2000, the Board remanded this case back to the RO for the purpose of obtaining tissue samples taken from the veteran at the University of California at San Francisco Medical Center (UCSFMC) in September 1996. At the time of the remand, the Board noted that the veteran's cancer of the right tonsil was first medically noted in 1996. In an August 1997 statement, Theodore L. Phillips, M.D., opined that the appellant's cancer of the right tonsil was consistent with lesions that were "possibly associated" with Agent Orange exposure. The file also included a statement from Michael G. Ratelle, who had two years experience working for the Ministry of Public Health in Thailand and who found that Agent Orange "more than likely" contributed to the development of the appellant's squamous cell carcinoma. On remand, those tissue samples and a report were obtained and added to the record. However, after reviewing that information and upon further study of the file, the Board observes that the biopsies upon which the diagnosis of squamous cell carcinoma was based were taken in April 1996 by Mills Peninsula Hospitals in San Mateo, California and, subsequently, by the UCSFMC and not the sample obtained in September 1996. These biopsies were taken prior to the veteran's course of radiation therapy and September 1996 surgery. The Mills Peninsula Hospital pathology report indicates the material was obtained on April 12, 1996, and has an accession number of PS-96-01922. The diagnosis was metastatic squamous cell carcinoma. The UCSFMC pathology report dated on April 24, 1996, has an accession number of ZS96-01935 and a diagnosis of moderately differentiated squamous cell carcinoma of the right tonsil. The Board regrets that these additional materials were not requested as part of the prior remand; however, as it is now apparent that it was the earlier samples that provided the basis for the diagnosis of carcinoma it is necessary these materials be obtained as they may be helpful in reaching a determination on the veteran's claim. Therefore, the Board finds that the noted biopsies should be obtained so that they may be submitted to the Armed Forces Institute of Pathology (AFIP) for a diagnosis and an opinion regarding etiology of the veteran's carcinoma of the right tonsil. Accordingly, this case is REMANDED to the RO for the following action: 1. After obtaining signed release forms from the veteran, the RO should contact the University of California at San Francisco Medical Center and Mills Peninsula Hospitals and obtain the biopsy specimens from April 1996 noted above. Those specimens should be associated with the veteran's claims file. 2. After completion of the above development, the RO should return the veteran's claims file, with the noted specimens, to the Board. The RO need not issue a Supplemental Statement of the Case unless the veteran submits evidence, in addition to the tissue slides, in support of his claim. The purpose of this REMAND is to obtain additional development, and the Board intimates no opinion as to the ultimate outcome warranted in this case. The veteran has the right to submit additional evidence and argument on this matter. See generally Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the veteran until he is so notified by the RO. STEVEN L. COHN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).