Citation Nr: 0711356 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 93-15 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for benign soft tissue growths (lipomas), claimed as soft tissue sarcomas, claimed as residuals of herbicide exposure. REPRESENTATION Veteran represented by: J. Myers Morton, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Yim, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to May 1968. He is a Vietnam War combat veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for soft tissue sarcoma claimed as a residual of herbicide exposure. In February 1996, the Board denied the claim. In October 1996, the United States Court of Appeals for Veterans Claims (hereinafter, "Court," and which then was the United States Court of Veterans Appeals) vacated the Board's February 1996 decision and directed readjudication. The Board again denied the claim in September 2002. On further review, in a March 2006 Memorandum Decision, the Court vacated only the portion of the Board's 2002 decision that denied the claim based on direct service connection. Therefore, only that issue remains for readjudication on appeal. The appeal must be remanded to the RO, via the Appeals Management Center in Washington, D.C., for further evidentiary development. VA will notify the veteran if further action is required. REMAND In March 2006, the Court concluded, essentially, that the Board had erred in relying upon various medical opinions to deny the claim because those opinions, in particular, did not specifically address etiology on a direct-causation basis, including whether there may be a cause-effect nexus between the claimed tissue growths and herbicide exposure in Vietnam, or otherwise were "suspect" because they did not explicitly address statistical evidence concerning Vietnam veterans that could have bearing on the issue of etiology in the instant case. The Court directed VA to provide the veteran with a medical examination or obtain a medical opinion regarding the possible nexus between the veteran's presumed exposure to Agent Orange and his lipomas. This remand is to comply with the Court's directive. The Court did not explicitly specify whether the Board should obtain a medical opinion or examination via a remand order, as opposed obtaining a medical opinion itself pursuant to 38 U.S.C.A. § 38 U.S.C.A. § 7109. However, in March 2007, the veteran's attorney submitted for Board consideration a March 2007 report of Dr. Craig N. Bash to support the claim on direct service connection. That evidence was submitted without an explicit waiver of the veteran's right to have the RO, the agency of original jurisdiction, initially consider it before the Board readjudicates the claim. Therefore, the Board concludes that remanding the matter for a C&P examination, which would yield current diagnostic findings as well as an etiology/nexus opinion on direct service connection, and as well, permit initial RO consideration of Dr. Bash's report, is the most appropriate course of action. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2006). This will also give the veteran an opportunity to receive the notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). Accordingly, the appeal is REMANDED for the following actions: 1. Send the veteran notice consistent with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Then schedule the veteran for an examination by a medical doctor, preferably an oncologist, to examine him, conduct any appropriate testing, review his medical history as documented in the claims file, and then diagnose any presently manifested soft tissue growths as claimed. The examiner should specifically indicate whether each diagnosis is a malignancy. For each diagnosis, the examiner should opine whether it is at least as likely as not (by a probability of 50 percent), more likely than not (by a probability higher than 50 percent), or less likely than not (by a probability lower than 50 percent) that it is etiologically related to military service, including, explicitly, whether it is related to exposure to herbicides (the veteran is presumed to have been exposed to herbicides). In explaining the rationale for the etiology opinion, the examiner should explicitly discuss the statistical significance, if any, of the following information found in the August 1995 and November 1999 Department of Defense Armed Forces Institute of Pathology (DOD AFIP) reports, but this request is not to be construed to mean that only those items have been determined to be material. Therefore, the examiner should discuss in detail all information he or she deems relevant to determine etiology in this case in addition to the following: (a) August 1995 DOD AFIP report: "It is germane to this case to note that in a reported series of more than one- thousand cases of Vietnam veterans, the incidence of lipomas was 5.98 %, and there was an incidence of 5.5 % of lipomas in a control group on non-Vietnam veterans," citing Modern Pathology, Vol. 2, No. 4, p. 360, 1989, "A Morphologic Study of Vietnam Veterans." (b) November 1999 DOD AFIP report: "In the previous review of this Veteran's pathology specimens in 1995, it was indicated that 'in a reported series of more than one-thousand cases of Vietnam veterans the incidence of lipomas was 5.98 %, and there was an incidence of 5.5 % of lipomas in a control group of non-Vietnam veterans' . . . Although in the same study dermatofibromas occurred with greater frequency in the Vietnam group, it was indicated that they 'are common and benign and do not have prognostic importance.' The relatively high frequency in which multiple angiolipomas and dermatofibromas occur was also indicated in the previous review . . . [citing Soft Tissue Pathology, Enzinger FM, Weiss SW, Third Edition, Mosby - Year Book Inc. St. Louis, 1995]" The examiner must explicitly state in the written examination report that the veteran's claims file, which should include a complete copy of this remand order, has been reviewed. 3. After completing the above, review the entire record and readjudicate the claim. If the benefit sought remains denied, issue an updated Supplemental Statement of the Case (SSOC). Then, if in order, return the appeal to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter(s) remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2006).