Citation Nr: 0719220 Decision Date: 06/26/07 Archive Date: 07/05/07 DOCKET NO. 06-35 513 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from April 1969 to January 1971. He passed away in May 1996 at the age of 49, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision by the RO which denied service connection for the cause of the veteran's death. 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 The appellant contends that the veteran's fatal metastatic colon cancer was the result of his inservice exposure to herbicide agents, including Agent Orange. A review of the veteran's claims folder revealed that he served in Vietnam, and that he died from cancer in May 1996. The certificate of death listed the cause of death as respiratory arrest due to (or as a consequence of) metastatic colon cancer. A recent letter, dated in March 2007, from a hematology oncologist who treated the veteran in 1996 indicated that the primary site of the cancer was not clear, but that it was most likely pancreatic or intestinal in origin, and that there was no evidence that the tumor was of colon origin. The appellant contends that the veteran's cancer was caused by his exposure to herbicides in service. At the personal hearing, she testified that the veteran was initially treated by a family doctor (Dr. Layton) in January 1996, and that he referred the veteran to a Dr. Reynolds for additional treatment, who then referred the veteran to the Mayo Clinic in Jacksonville, Florida. The veteran was also treated at Wayne Memorial Hospital in Honesdale, Pennsylvania, and had a CAT scan at an unidentified hospital in Binghamton, New York. The appellant also indicated that the veteran had an Agent Orange VA examination in Albany in the late 1970's or early 1980's. However, the evidentiary record as currently constituted includes only a few pages of medical records from the Mayo Clinic. At this point it should be noted that the appellant only recently advised VA of the existence of these additional sources, and thus no prior attempt was made to obtain any information from these facilities. In addition, subsequent to the travel Board hearing in March 2007, the appellant's representative submitted a private medical opinion to the effect that the veteran's cancer was due to exposure to Agent Orange in service. The representative pointed out that the appellant did not waive RO consideration of the medical report. As such, the Board is compelled to remand the appeal for RO consideration of the additional evidence prior to appellate review. 38 C.F.R. § 201304(c) (2006). Given the medical complexity of this case, and the absence of potentially probative medical evidence, the Board finds that further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The following information is provided for the benefit of the VA examiner. The following diseases are associated with exposure to certain herbicide agents, and will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. Pursuant to 38 C.F.R. § 3.309(e), chloracne or other acne form disease consistent with chloracne; Type II diabetes mellitus; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: 1. Appropriate steps should be undertaken to obtain the names and addresses of all healthcare providers, VA or non-VA, who treated the veteran for his cancer in 1996. Of particular interest are all records, including any diagnostic studies, i.e. CAT scans, etc., from Wayne Memorial Hospital, Honesdale, PA; the Mayo Clinic, Jacksonville, FL, and the unidentified hospital in Binghamton, NY. Also an attempt should be made to obtain the reported VA Agent Orange examination conducted in Albany in the late 1970's or early 1980's. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the appellant, a notation to that effect should be inserted in the file, and the appellant should be notified of any unsuccessful efforts in this regard. 2. Thereafter, the claims file and a copy of this remand should be forwarded to the appropriate VA physician, preferably an oncologist, for review and an opinion as to the etiology of the veteran's cancer. The examiner is request to review file, with particular emphasis on the veteran's treatment records in 1996, and render an opinion as to whether it is at least as likely as not that his fatal cancer was incurred or aggravated during his military service, or whether this condition was consistent with one of the diseases under 38 C.F.R. § 3.309(e), listed above. The examiner is also requested to comment on the April 2007 opinion from Dr. Bash. If the examiner is unable to answer the above inquiry, this should be so indicated and an explanation included. A complete rationale must be provided for all conclusions reached and opinions expressed. If the examiner is only able to theorize or speculate as to this matter, this should be so stated. 3. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2006). 4. After the requested development has been completed, the AMC should review and adjudicate the merits of the claim based on all the evidence of record and all governing legal authority, including the VCAA and implementing regulations, and any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished an SSOC, and be given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2006). WILLIAM YATES 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) (2006).