Citation Nr: 1048353 Decision Date: 12/29/10 Archive Date: 01/03/11 DOCKET NO. 03-28 896A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to August 1971. He died in June 1984. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2004, the appellant testified at a personal hearing before a Decision Review Officer (DRO). In her October 2003 substantive appeal, the appellant requested a hearing before a member of the Board. In January 2004, she withdrew that request. She had previously testified before the Board in a May 2002 video conference hearing. Transcripts of the January 2004 DRO hearing and the May 2002 Board hearing are of record. In November 2006, the Board issued a decision addressing this matter. The appellant appealed to the United States Court of Appeals for Veterans Claims (Veterans Court). In March 2008, the Veterans Court granted a joint motion of the appellant and the Secretary of Veterans' Affairs (the Parties), vacated the Board decision, and remanded the matter to the Board for compliance with the instructions in the joint motion. The Board again adjudicated the appeal in a September 2008 decision. The appellant appealed that decision to the Veterans Court and in November 2009, the Veterans Court granted another joint motion of the Parties, again vacating and remanding the matter to the Board for compliance with the instructions in the joint motion. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Pursuant to the November 2009 joint motion, in November 2010 the Board requested a Veterans Health Administration (VHA) expert opinion from an oncologist. The oncologist responded in a letter dated later that month, as follows: I am unable to render an opinion on the case of Veteran [Veteran's name], for the reasons outlined below. The case hinges on whether the patient had a grade 3 astrocytoma (as the original pathology report in 1984 indicated) or a rhabdomyosarcome (which Dr. Danielson apparently has called it). Rhabdomyosarcoma qualifies as an "Agent Orange"- associated condition, whereas astrocytoma does not. The only way I can tell whether the diagnosis is astrocytoma or rhabdomyosarcoma is to look at the glass microscope slides myself. The glass microscope slides are from Biloxi Regional Medical Center, and they should be labeled S84-791. In order to complete the development in this case, the matter must be remanded so that the slides, which this VA oncologist has specified, can be obtained and presented to an oncologist for viewing. Due to the nature of the questions at issue, the Board requires that an oncologist provide the requested opinion in this case. The Board will here summarize the evidence in this case - essentially repeating the history of the case as the Board did in the request for a VHA opinion. Once, the slides are obtained, if they are obtainable, the slides, the claims file, and a copy of this remand, including this narrative section, must be presented to an oncologist and an opinion obtained. The evidence is summarized as follows: The Veteran served in the U.S. Marine Corp from May 1967 to August 1971, part of which time he spent in the Republic of Vietnam. It is presumed that he was exposed to a defoliant "Agent Orange" which contained an herbicide agent. He died in June 1984 and the death certificate lists the cause of death as respiratory arrest due to increased intracranial pressure caused by Grade III astrocytoma of the left cerebral hemisphere, with other significant conditions of craniotomy. No autopsy was performed but "R.T.F.," M.D., who treated the Veteran at the time of his death, listed the cause of death as Grade III astrocytoma, left hemisphere, with displacement of the lateral ventricle. A pathologist, "E.D.M," M.D., wrote a June 1984 pathology report in which he diagnosed Astrocytoma Grade III. In a July 1984 letter, "H.A.D.," M.D., asked that attention be given as to whether the etiology of the Veteran's tumor included exposure to Agent Orange. In 1991 VA amended its regulations to provide that service connection (entitlement to disability benefits) would be presumed if a Veteran who was exposed to an herbicide agent during active service suffered disability from a soft tissue sarcoma other than osteosarcoma, chondrosarcoma, Karposi's sarcoma, or mesothelioma). Currently the term "soft-tissue sarcoma" is defined by VA regulation to include the following Adult fibrosarcoma, Dermatofibrosarcoma protuberans, Malignant fibrous histiocytoma, Liposarcoma, Leiomyosarcoma, Epithelioid leiomyosarcoma (malignant leiomyoblastoma), Rhabdomyosarcoma, Ectomesenchymoma, Angiosarcoma (hemangiosarcoma and lymphangiosarcoma), Proliferating (systemic) angioendotheliomatosis, Malignant glomus tumor, Malignant hemangiopericytoma, Synovial sarcoma (malignant synovioma), Malignant giant cell tumor of tendon sheath, Malignant schwannoma - including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor) as well as glandular and epithelioid malignant schwannomas, Malignant mesenchymoma, Malignant granular cell tumor, Alveolar soft part sarcoma, Epithelioid sarcoma, Clear cell sarcoma of tendons and aponeuroses, Extraskeletal Ewing's sarcoma, Congenital and infantile fibrosarcoma, and Malignant ganglioneuroma. In a September 2000 letter, Dr. "H.A.D" provided an opinion that it was probable that the Veteran's exposure to Agent Orange caused his tumor. Dr. "H.A.D" referred to the Veteran's tumor as a first cousin to a soft tissue sarcoma and remarked that it is of the type that some persons diagnose as a soft tissue sarcoma. In a May 2003 letter, Dr. "R.T.F." provided an explanation as to why he believed the Veteran's tumor was a soft tissue sarcoma. Dr. "R.T.F." stated that his explanation established that the Veteran's tumor was a soft tissue sarcoma and pointed out that soft tissue sarcoma was on the list of diseases recognized by VA as related to herbicide exposure. In a January 2004 letter, Dr. "R.T.F." provided additional explanation with regard to the Veteran's tumor. In a July 2003 examination report "C.A.," M.D., explained that the Veteran's tumor was not a soft tissue sarcoma. In March 2004, Dr. "H.A.D." opined that the Veteran's tumor was actually rhabdomyosarcoma, a soft tissue sarcoma. He opined that the Veteran's exposure to an herbicide in Vietnam caused his tumor. He also opined that the Veteran developed his tumor during his military career and it slowly progressed. In an August 2004 VA examination report, "B.P." provided an opinion that the Veteran's tumor was astrocytoma, not a soft tissue sarcoma. "B.P." also provided an opinion, after consultation with an oncologist, that to state that the Veteran's astrocytoma existed fourteen years earlier as a grade I astrocytoma would be sheer speculation. Pursuant to a request from the Board, Dr. "C.A." provided an opinion that the Veteran's tumor was not a soft tissue sarcoma and that there was no medical literature to support a link between the Veteran's astrocytoma and Agent Orange exposure. She also stated that there was no medical evidence or literature to link his Astrocytoma to his time in the military or exposure to Agent Orange and she concluded that the opinions of his treating physicians were speculative. In an August 2008 medical evaluation, "C.N.B.," M.D., provided an opinion that exposure to Agent Orange caused the Veteran's brain tumor. The Court of Appeals for Veterans Claims has granted a joint motion of the appellant and the Secretary of Veterans' Affairs concluding that the opinions provided by "B.P." and Dr. "C.A." are not adequate. This was based on a lack of acceptable rationale offered by "B.P." and Dr. "C.A.", including that Dr. "C.A." had not offered an acceptable rationale for dismissing the opinions of Dr. "H.A.D." and Dr. "R.T.F." The Board is faced with conflicting opinions. The opinions of Dr. "C.A." and "B.P." have been deemed inadequate. The other opinions offer three theories. First, that the Veteran's tumor was a soft tissue sarcoma and is listed on the diseases for which service connection is presumed due to exposure to Agent Orange. Second, that the Veteran's tumor actually had onset during service. Third, that exposure to Agent Orange actually caused his tumor. The Board finds that the record does not contain sufficient medical evidence to decide the claim and therefore this remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain, if possible, glass microscopic slides relevant to the diagnosis of the Veteran's cancer from the Biloxi Regional Medical Center. These slides should be labeled S84-791. If the slides are no longer available, obtain a reply from the Biloxi Medical Center to that effect, including a statement as to what happened to the slides, i.e. whether the slides were destroyed, placed in archival storage, etc. and follow up on any information which could lead to obtaining the slides. All efforts to obtain the slides must be documented as well as all replies; and these documents must be associated with the claims file. 2. Then, if the slides are obtained, provide the slides, the claims file, and a copy of this remand to an oncologist. The entire remand must be provided to the oncologist, including the narrative section explaining the pertinent history of this case. It is critical that the oncologist explain his or her opinion in detail. The oncologist is asked to discuss the opinions of Dr. "C.N.B.," Dr. "H.A.D.," and Dr. "R.T.F.," and the findings of Dr. "E.D.M." If the oncologist concludes that any of the opinions are speculative, he or she is asked to explain the basis for such a conclusion. In short, a clear and detailed rationale is required for all opinions rendered by the oncologist. After reviewing the claims file and this remand in detail, and viewing the slides, the oncologist is asked to address the following (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's tumor which caused his death was a soft tissue sarcoma as defined by VA regulations. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the tumor which caused the Veteran's death had onset, that is, was present, during his active military service, which ended August 17, 1971. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that exposure to Agent Orange caused the Veteran's tumor. The Board is not asking the oncologist to make a determination as to whether he or she believes that astrocytoma should be added to the list of disease for which service connection is presumed due to exposure to Agent Orange. As to (c), the Board is asking the examiner to provide an opinion as to causation. An opinion that states that a disease was not caused by exposure to Agent Orange solely because the disease is not listed in the regulation for presumptive service connection is not an opinion supported by rationale. The list of disease for which service connection is presumed is a list of diseases for which no further proof is necessary as far as if VA benefits are warranted. That a given disease is not on the list is not evidence, standing alone, that Agent Orange exposure did not cause the disease. 3. Then, whether the slides are obtained or not, the RO must readjudicate the issue on appeal with consideration of all evidence added to the record since the last supplemental statement of the case was issued in April 2006. If the benefit sought is not allowed, provide the appellant and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JOHN J. CROWLEY 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) (2010).