Citation Nr: 1215294 Decision Date: 04/27/12 Archive Date: 05/07/12 DOCKET NO. 11-26 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for soft tissue sarcoma, to include a due to exposure to herbicides. 2. Entitlement to service connection for lymph node tumors, to include as secondary to soft tissue sarcoma. 3. Entitlement to service connection for lung tumors, to include as secondary to soft tissue sarcoma. 4. Entitlement to service connection for pancreatic tumors, to include as secondary to soft tissue sarcoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from April 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board acknowledges that a prior rating action in July 2009 denied service connection for pancreatic cancer. The RO then issued another rating decision in April 2010. However, this matter may still be adjudicated on a de novo basis because the July 2009 rating decision did not become final. Indeed, VA treatment records received within a year of the July 2009 denial constitute new and material evidence. See 38 C.F.R. § 3.156(b) Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 is essentially claiming that his cancer is due to exposure to herbicides while stationed in Vietnam. VA treatment records from the Pittsburgh, Pennsylvania VA Medical Center (VAMC) reference a September 2008 CT scan done at the Erie, Pennsylvania VAMC, which showed a pancreatic head mass. As referenced in the clinical reports, the Veteran subsequently underwent a biopsy, which showed adenocarcinoma of the pancreas. He then underwent a Whipple procedure that same month at the Pittsburgh VAMC. However, these relevant September 2008 records showing the initial diagnosis and treatment for the Veteran's cancer from the Erie VAMC and Pittsburgh VAMC, have not been associated with the Veteran's record. Rather, it appears that the RO only obtained relevant records from October 2008. A review of the Virtual VA paperless claims processing system also does not reveal any additional treatment records. Thus, this case must be returned to the RO in order to obtain the September 2008 VA treatment records from the Erie VAMC and Pittsburgh VAMC. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, the most recent treatment records from the Pittsburgh VAMC contain no entries from April 2010 onward, and from the Erie VAMC, no entries from November 2008 onward. Accordingly, more recent treatment records should also be obtained. Further, the Board observes that soft-tissue sarcoma is presumed due to exposure to Agent Orange. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). However, in the instant case, based on the VA treatment records available, it appears that the Veteran's primary diagnosis is stage III adenocarcinoma of the pancreas. While the claims file includes e-mails that state that a VA doctor determined that the Veteran's pancreatic cancer was not a soft tissue cancer or sarcoma, there is actually no medical opinion with rationale in the claims file. It does not appear that this e-mail was prepared by a medical doctor. Rather, it simply relates an opinion and while it provides a conclusion, it gives no rationale. Moreover, the Veteran is not precluded from establishing service connection with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the instant case, the Veteran has not been provided with a VA examination with opinion as to whether his pancreatic cancer could be directly related to service. Accordingly, in light of the foregoing, the Board finds that a VA examination is necessary to determine the etiology of the Veteran's cancer. See generally 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO should obtain the following relevant VA treatment records: from the Erie, Pennsylvania, VAMC and Pittsburgh, Pennsylvania VAMC from September 2008 concerning the Veteran's initial diagnosis and treatment of his cancer; from the Pittsburgh, Pennsylvania VAMC from April 2010 to the present; and from the Erie, Pennsylvania, VAMC from November 2008 to the present. 2. Thereafter, the Veteran should be scheduled for an appropriate VA examination with an oncologist to determine the etiology of his cancer. The claims file must be made available to the examiner for review. If the Veteran is unable to report for a VA examination, then the claims file should be sent to an oncologist to offer an opinion based on its review. All medically necessary tests should be completed. After reviewing the claims file and examining the Veteran, the examiner should clearly delineate whether the Veteran has a soft tissue sarcoma. Further, the examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's cancer manifested during service or is otherwise related to service, to include any exposure to herbicides. A detailed rationale should be provided for all opinions expressed. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for all opinions expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2011). _________________________________________________ ERIC S. LEBOFF 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) (2011).