Citation Nr: 0615507 Decision Date: 05/26/06 Archive Date: 06/06/06 DOCKET NO. 94-30 096 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Sandra E. Booth, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The appellant is the spouse of the veteran who had active service from June 1969 to October 1971. He served in Vietnam from July 1970 to March 1971. He died on September [redacted], 1992. A review of the evidence of record discloses that by decision dated in February 1997, the Board of Veterans' Appeals (Board) denied entitlement to service connection for the cause of the veteran's death. The appellant appealed the decision to the United States Court of Veterans Appeals for Veterans Claims (Court). In a March 2001 order, the Court vacated the February 1997 Board decision and remanded the case to the Board for readjudication in light of the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). Subsequently, the Board remanded the case in August 2003 for procedural and substantive purposes. The case was referred to the section chief of the Hematology/Oncology Division of the New Mexico VA Health Care System. In February 2006, that individual provided a discussion regarding whether the veteran's malignant thymoma was more likely than not related to exposure to Agent Orange while serving in Vietnam. The case was then returned to the Board for appellate review. REMAND As noted by the appellant's representative, this case has been in appellate status for a number of years. The record continues to contain conflicting opinions as to whether the veteran's development of a malignant thymoma was as likely as not linked to his exposure to Agent Orange while serving in Vietnam. Craig M. Bash, M.D., a Neuro-radiologist, reviewed the entire claims file in October 2001. He expressed the opinion that the veteran's thymoma was a type of sarcoma (he noted this was a mesodermal tumor made up of lymphatic cells) that was likely due to the veteran's Agent Orange exposure. He opined the veteran's demise was due to the mediastinal fibrosis and bleeding in the operating room that was secondary to the Agent Orange induced thymoma and treatment associated with therapy. A VA hematologist/oncologist and a VA endocrinologist at the VA Medical Center in Cleveland reviewed the claims file in May 2004. The endocrinologist opined that there was no relationship between exposure to Agent Orange and the veteran's malignant cystic thymoma. He stated the tumor was a highly aggressive malignancy and believed it was as likely as not that the tumor developed within the year or two prior to diagnosis (a review of the record reveals the initial diagnosis was made in 1997). The case was referred to the section chief of the Hematology/Oncology Division of the New Mexico VA Health Care System. In February 2006 she stated that, "Since thymomas are considered to be a malignancy of epithelial cells and epithelial cells are not direct from mesoderm, Dr. Bash's contention that thymoma should be considered a type of soft tissue sarcoma (tumors of cells direct from mesoderm) is completely without merit. I agree that this tumor is unrelated to the various tumors listed at 38 C.F.R. § 3.309(e) (2004). I consider it not to be more likely than not that the patient's [the veteran] thymoma was related to Agent Orange exposure." However, in an April 2006 communication, Dr. Bash, an Associate Professor of Radiology and Nuclear Medicine at the F. Edward Hebert School of Medicine, Uniformed Services, University of Health Sciences, Bethesda, Maryland, stated that he had re-reviewed the veteran's claims file and medical records, to include the recent medical opinion from the VA oncologist in New Mexico. He stated that he had reviewed the references the physician referred to in her opinion. Stating that the case was "very complex," he expressed disagreement with the oncologist's opinion and reiterated his opinion that the "veteran as likely as not had a lymphoma-type tumor in his thymus along with his basic thymoma..." He reiterated the opinion that the veteran's thymoma, also known as mesoderm tumor, qualified as a service related tumor under the pertinent VA regulations and was consistent with the opinion he expressed in 2001 referred to above. He specifically stated that the oncologist did not make any references to the veteran's 1977 pathology report. He believed the key to the case was contained in the pathology report because that report detailed the various cell types contained in the veteran's tumor. He believed an analysis of the pathology was needed in order to understand whether or not the tumor satisfied the requirements to qualify as a disease associated with exposure to Agent Orange. The record shows the VA oncologist has not had an opportunity to review the April 2006 communication from Dr. Bash. The Board believes that such a review would be helpful. The Board is well aware the case has been in appellate status for many years, but believes that Dr. Bash's recent communication requires that the VA oncologist have an opportunity to review it and respond to the opinions expressed by Dr. Bash. Accordingly, the case is remanded for the following: 1. The case should be referred to the section chief of the Hematology/Oncology Division at the New Mexico VA Health Care System whose February 24, 2006, review of the claims folder is of record. She should be asked to do one more review of the record in light of the April 2006 medical opinion from the neuron- radiologist, Dr. Bash, for the purpose of determining whether she still believes that it is more likely than not that the veteran's thymoma was not related to his exposure to Agent Orange in Vietnam. She is especially asked to address Dr. Bash's comments regarding the 1977 pathology report of the veteran's tumor. If the physician is not available, review of the record, particularly the opinions from Dr. Bash, is to be made by another VA physician knowledgeable in oncology. That examiner is also asked to opine whether he or she concurs or disagrees with the opinion of Dr. Bash and his/her reasons and bases for doing so. The claims file and a copy of this remand must be provided to the physician for review of pertinent documents and notation that the claims file was available for review should be made in the examination report. 2. Following completion of the above, VA should readjudicate the claim of entitlement to service connection for the cause of the veteran's death. If the benefit sought remains denied, VA should issue a supplemental statement of the case and the appellant and her representative should be provided with an opportunity for response. Then, the case should be returned to the Board, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no further action until she is notified by VA. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ F. JUDGE FLOWERS 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) (2005).