Citation Nr: 1011237 Decision Date: 03/25/10 Archive Date: 04/07/10 DOCKET NO. 08-16 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for squamos cell carcinoma of the tonsil with lymph node involvement, claimed as due to exposure to herbicides and DDT. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2007, the Veteran testified at an RO hearing on a different issue. A transcript of this hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran alleges that he was exposed to herbicides during his service in Thailand. He has stated that he worked as a military policeman and was exposed to herbicides while investigating accidents and while inspecting ships in port. The Veteran additionally, through his representative, indicated that his plane stopped in Vietnam when he was leaving Thailand. There is no indication as to whether the Veteran claims that he got off the plane during this layover. The Board notes that specific rules exist which are relevant to the development of cases involving claims for service connection based on herbicide exposure in locations other than Vietnam or along the demilitarized zone in Korea. VA's Adjudication Procedure Manual provides certain steps should be undertaken in these instances. See M21-1 MR, Part IV.ii.2.C.10.n. The Board notes that the table was modified in 2009, during the pendency of the Veteran's claim, adding a new Step 1 which included specific procedures for claims involving allegations of herbicide exposure along the Korean DMZ and in Thailand. The Board additionally notes that the RO did not contact the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides as alleged by the Veteran, as required in Step 4; additionally indicated as the next step in an e-mail from C & P service dated January 2008. Thus, the Veteran's claim must be remanded for additional development as outlined in the M21-1 MR. The Board additionally notes that the Veteran has submitted medical opinions indicating that his squamos cell carcinoma is secondary to exposure to herbicides and/or DDT while in service without rationales concerning how these conclusions were reached. There is additionally a July 2007 VA examination with a September 2007 addendum which indicates that the examiner could not say if the Veteran's carcinoma is secondary to an incident of service with certainty without resorting to speculation. The Board notes that certainty is not the standard but rather a probability of less likely, as likely or more likely than not. Further, a possible relationship was noted on the earlier examination. Thus, after the above development is performed, the RO/AMC should request either an addendum from the previous examiner or a new examination for the Veteran to determine if his squamos cell carcinoma is related to an incident of active service. The Board notes that the Veteran additionally indicated in hearing testimony that he had pictures at home of investigations which involved his handling overturned and leaking barrels of hazardous materials. The Veteran should be requested to submit these pictures. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran submit his pictures of hazardous barrels he came in contact with while on active duty. 2. Develop the Veteran's allegations concerning herbicide exposure under the provisions set forth in the M21-1 MR regarding claims for service connection based on herbicide exposure in Thailand. 3. Request an addendum from the July 2007 examiner, with an additional examination of the Veteran if the examiner finds such necessary. If the July 2007 examiner is not available, then the Veteran should be scheduled for a new examination with a physician. All necessary tests and studies should be accomplished. An opinion should be provided regarding the likelihood that the Veteran's squamos cell carcinoma is related to his period of military service. It should be indicated whether the type of cancer found might have a likely onset secondary to irritant exposure. More specifically, whether there is a 50 percent or better probability (whether it is at least as likely as not) that the Veteran's carcinoma is related to any incident of service. The examiner should consider the development concerning whether the Veteran was exposed to herbicides during service and also consider the Veteran's statements and lay statements concerning exposure to DDT while in service in forming the requested opinion. The claims folder should be provided to the examiner in conjunction with the examination. Reasons and bases for all conclusions should be noted. A rationale for all opinions expressed must be provided. If the Veteran fails to report for the examination, a review of all records should be undertaken and the above matter addressed if possible. If the Veteran fails to report, the address to which the notice is sent should be provided, and the RO/AMC should indicate whether the notification was returned as undeliverable. 4. Thereafter, the claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond. 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. 2009). _________________________________________________ MICHAEL D. LYON 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) (2009).