Citation Nr: 1101878 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 07-17 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for squamous cell carcinoma of the left tonsillar fossa, including as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amy R. Grasman, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In January 2006, the Veteran submitted a letter from a private otolaryngologist. The physician noted that the Veteran essentially had no risk factors for squamous cell carcinoma of the left tonsil except for Agent Orange exposure in service. In an October 2006 letter, the physician noted the Veteran's history of exposure to Agent Orange in service. The physician noted a report that indicated that herbicides were related to cancers of the lung, bronchus, larynx and trachea. He stated that "obviously if these cancers, which I assume are probably the same cell type, (it makes sense to me, and I think to most head and neck surgeons) can cause laryngeal cancer and if that's squamous cell carcinoma, I don't understand why it cannot predispose a patient to cancer of the tonsil, since essentially we are talking about an area that is only a few centimeters in distance away." The physician noted that the Veteran was a nonsmoker who developed squamous cell carcinoma of the left tonsil and presented with metastic disease to his neck. The physician concluded that he certainly had to think that if the herbicide can cause squamous cell carcinoma of the lung, bronchus, larynx or trachea; it could certainly cause squamous cell carcinoma of the tonsil. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board acknowledges that VA regulations do not provide for presumptive service connection for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses). See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32395-407 (June 12, 2007); Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332-247 (December 27, 2010); see also 38 C.F.R. § 3.309(e). Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that the 2006 letters from the private physician meet the threshold that there may be a nexus between squamous cell carcinoma of the left tonsil and military service. See McLendon, supra. Therefore, the Veteran should be afforded a VA Compensation and Pension Examination to determine if there is a nexus between squamous cell carcinoma of the tonsil and service on a direct basis. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination with the appropriate medical specialist (on a fee basis, if necessary) to determine the etiology of squamous cell carcinoma of the left tonsil. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should state whether the Veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by active service, including exposure to herbicides. Any opinion expressed should be accompanied by supporting rationale. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).