Citation Nr: 0811895 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-19 511 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for defective hearing in the left ear, headaches, right shoulder disability, multiple joint pain, lung disorder, eye disorder, back disability, bilateral hand disabilities, bilateral leg disabilities, sinusitis, skin disorder, heart disorder, loss of teeth, and fatigue, weakness, and numbness of the body, all claimed as due to herbicide exposure and/or claimed as secondary to radiation treatment for service-connected squamous cell carcinoma of the left true vocal cord. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from April 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision by the RO which, in part, denied service connection for the disabilities at issue on appeal, claimed as due to herbicide exposure. In January 2007, a hearing was held at the RO before the undersigned member of the Board. 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 veteran contends that all of the disabilities at issue on appeal are related to herbicide exposure while serving in Vietnam. In the alternative, it is argued that the disabilities are related to radiation treatment he received for his service-connected squamous cell carcinoma of the left true vocal cord in the mid-1980's. As to the latter claim of secondary service connection, the Board notes that this theory was first raised by the representative in the Statement of Accredited Representation in Appealed Case (VA Form 646), received in October 2006, and has never been considered by the RO in adjudicating the veteran's claims. The RO, on remand, will have the opportunity to consider this theory of entitlement. Additionally, at the personal hearing in January 2007, the veteran testified that he was given a VA Agent Orange examination in July 2004. However, a copy of the examination report is not in the claims file. Given the nature of the veteran's claims, the examination report is relevant evidence and must be obtained prior to appellate review. The service medical records showed that the veteran was treated for a rash on the palms and dorsum of his hands and the groin area in June 1970, and on both legs in March 1971. He was treated for conjunctivitis in the left eye in December 1970. His service enlistment examination in January 1968, showed a reported history of non specific chest pains unrelated to exertion, and high blood pressure. On examination, the veteran had a Grade II functional apical systolic murmur and his blood pressure was 136/76. He was treated for chest pains of unknown etiology in February 1969, at which time he was noted to have a slight upper respiratory infection; a chest x-ray study was normal. The impression was chest pain of unknown etiology. With respect to the claims for skin, eye, and heart disorders, the fact that the veteran was treated for problems in service, claims that he has had recurring problems since service, and now seeks service connection for disabilities in the same anatomical area requires VA to obtain a medical opinion as to the nature and etiology of any current disability. In this case, the veteran has never been afforded a VA examination. 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. Provide the veteran all notification required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), with respect to his claims. This letter must include all pertinent notice regarding the veteran's claims of service connection for the disabilities listed on the title page of this decision each to include as secondary to, or aggravated by, his service-connected status post squamous cell carcinoma of the left true vocal cord. The notice should also inform the veteran that he should provide VA with copies of any evidence relevant to the claim that he has in his possession. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. 2. Appropriate steps should be undertaken to obtain the names and addresses of all healthcare providers who treated the veteran for any of the claimed disabilities since his discharge from service. After the veteran has signed the appropriate releases, all records not already in the file should be obtained and associated with the claims folder. Of particular interest would be records for treatment of any of the disabilities within the first year of discharge from service. Also an attempt should be made to obtain the reported VA Agent Orange examination conducted in July 2004. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file, and the appellant should be notified of any unsuccessful efforts in this regard. 3. The veteran should be afforded a VA examination by a radiation oncologist, if available, or other suitably qualified examiner, to determine the nature and, if feasible, etiology of all of the claimed disabilities on appeal. The claims folder and a copy of this remand must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should provide a response to the following questions: I Is it at least as likely as not that any identified disability is proximately due to or the result of radiation exposure from treatment for his service-connected squamous cell carcinoma of the left vocal cord in 1983. II If not, is it at least as likely as not that any identified disability was permanently aggravated by radiation treatment? If aggravation is noted, the degree of aggravation should be quantified, if possible for each disability. The examiner should provide a complete rationale for all opinions offered with specific reference to the actual contemporaneous evidence that forms the basis of that opinion. If the examiner is only able to theorize or speculate as to this matter, this should be so stated. 4. The veteran should be afforded a VA dermatological examination to determine the nature and etiology of any identified skin disorder of the hands and legs. The claims folder and a copy of this remand must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should provide an opinion as to whether it is at least as likely as not that any identified skin disorder had its onset in service or is otherwise related to service. The examiner should provide a complete rationale for all conclusions reached and opinions expressed. The findings should be typed or otherwise recorded in a legible manner for review purposes. 5. The veteran should be afforded a VA examination to determine the nature and etiology of any identified eye disorder. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished and the findings should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not that any identified eye disorder had its onset in service or is otherwise related to service. If the examiner is only able to theorize or speculate as to this matter, this should be so stated. The findings should be typed or otherwise recorded in a legible manner for review purposes. 6. The veteran should be afforded a VA cardiovascular examination to determine the nature and etiology of any identified cardiovascular disorder. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished and the findings should be reported in detail. The examiner should provide an opinion as to whether there was any worsening of the veteran's preexisting heart disorder in service, and if so, whether such increase was due to the natural progression of such a disease, or whether such worsening constituted chronic aggravation due to service. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying disorder, as contrasted with symptoms, has worsened. If a current heart disorder is found not to have preexisted the veteran's military service, the examiner should indicate whether it is at least as likely as not that any current heart disorder is otherwise etiologically related to the veteran's military service. If the examiner is only able to theorize or speculate as to these matters, this should be so stated. The findings should be typed or otherwise recorded in a legible manner for review purposes. 7. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 8. 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 if the examiners have provided a response to all questions posed. If not, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2007). 9. 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. This should include consideration of whether any identified disability is proximately due to or the result of, or aggravated by the service-connected squamous cell carcinoma of the left vocal cord and treatment therefor. The provisions of Allen v. Brown, 7 Vet. App. 439 (1995) should be considered. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished an SSOC, which should include the appropriate laws and regulations pertaining to secondary service connection, 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 veteran need take no action unless otherwise notified. The veteran 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. 2007). S. L. Kennedy 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) (2007).