Citation Nr: 1218596 Decision Date: 05/24/12 Archive Date: 06/07/12 DOCKET NO. 05-06 590A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for squamous cell carcinoma of the mouth, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Fennie L. Fiddler, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The appellant served on active duty from August 1971 to February 1998. These matters on appeal before the Board of Veterans' Appeals (Board) arise from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for squamous cell carcinoma of the mouth. This matter also arises from a July 2005 rating decision that denied service connection for a lumbar spine disability. A January 2008 Board decision denied the Veteran's claim of service connection a lumbar spine disability (the issue of service connection for squamous cell carcinoma of the mouth was remanded at this time). The Veteran appealed the Board decision denying service connection for a lumbar spine disability to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion Remand, in an October 2009 Order, the Court vacated the Board decision and remanded the case to the Board for readjudication in accordance with the Joint Motion. In November 2010, the Board remanded these matters for additional development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). In the November 2010 remand, the Board instructed to the RO to determine whether the position of Chief of the Health Services Division as held by C.T.W., a retired fellow Coast Guard service member who provided a favorable opinion, while stationed with the Veteran, required medical training. While the RO obtained a copy of the job description of a health services technician, no attempt was made to obtain specific verification of C.T.W.'s professional credentials while he was the Chief of the Health Services Division at United States Coast Guard Base in Miami. Hence, another remand is warranted. The Veteran in this case has already been afforded two VA examinations that addressed his claim for service connection for a lumbar spine disability. In April 2005 the Veteran was afforded a VA spine examination during which the examiner diagnosed degenerative disc disease of the lumbar spine, and in a May 2005 addendum stated that the examiner could not resolve the issue of etiology of the appellant's back condition without resorting to mere speculation. Most recently, the Veteran was afforded a May 2011 VA spine examination. However, as noted by the Veteran's attorney in an April 2012 letter, the May 2011 examination is inadequate because it did not comply with the Board's November 2010 remand instructions. Specifically, the VA examiner did not reconcile the June 2006 statement from C.T.W. that related the Veteran's back disability to service. Further, the VA examiner did not consider the Veteran's statements regarding continuity of symptomatology. Thus, the Board finds that the opinions of record remain inadequate for the for the purpose of determining whether the Veteran's currently diagnosed lumbar spine disability is related to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in- service injury and relied on lack of evidence in service medical records to provide negative opinion). Hence, a remand is warranted to return the claims file to the May 2011 VA examiner, if available, for a supplemental opinion, With regard to the Veteran's claim for service connection for squamous cell carcinoma of the mouth, to include as due to asbestos exposure, the Veteran was afforded a January 2010 VA examination. As noted by the Veteran's attorney in an April 2012 letter, the VA examiner failed to provide an opinion as to the date of the manifestation of the tumor. Specifically, in the Board's January 2008 remand, the VA examiner was requested to express an opinion whether it was as likely as not (50 percent or greater probability) that squamous cell carcinoma of the floor of the mouth manifested as a malignant tumor by February 28, 1999. The Board notes that a June 2002 pathology report found that the tumor had been present for greater than three years. No opinion as to date of onset was provided, to include any discussion of the noted pathology report. In addition, in a February 2004 VA examination report, the VA examiner at that time opined that the Veteran's exposure to asbestos was at least as likely as not an etiological factor in the squamous cell carcinoma along with the long term effects of smoking. The Board finds that the Veteran should be afforded a new VA examination by an appropriate specialist to address the issue of etiology and onset of the Veteran's squamous cell carcinoma. The Board also recognizes that in an April 2012 letter, the Veteran's attorney has referenced and cited various sources pertaining to the slow growth of squamous cell carcinoma, the facts that most oral cavity cancers start in squamous cells (noting the Veteran severe gum trouble during service in 1997) and that the American Cancer Society states that risk factors (such as smoking) are not determinative as to etiology. An attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise is too general and inclusive. Sacks v. West, 11 Vet. App. 314 (1998) (medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). However, these reference sources should be consulted by a physician on remand during an examination. Accordingly, the case is REMANDED for the following actions: 1. Specifically verify C.T.W.'s professional credentials while he was the Chief of the Health Services Division at United States Coast Guard Base in Miami. 2. Forward the entire claims file to the examiner who prepared the May 2011 VA spine examination report for a supplemental opinion. If that examiner is unavailable, schedule the Veteran for an examination with another medical doctor. The examiner is requested to reconcile the June 2006 statement from CTW that related the Veteran's back disability to service. Further, the VA examiner should address the Veteran's statements regarding continuity of symptomatology in providing an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any current back disorder, to include degenerative disc disease of the lumbar spine, is related to the Veteran's service or whether any arthritis of the lumbar spine developed within one year of the Veteran's discharge from service in February 1998. If the prior examiner is unavailable, or is unable to render the requested supplemental opinion without examining the Veteran, schedule the Veteran for a VA spine examination, by a medical doctor with the appropriate expertise, to obtain answers to the question posed above. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished with all results made available to the examiner prior to the completion of the report. The examiner should set forth all examination findings, with the rationale for the conclusions reached. 3. Schedule the Veteran for a VA examination by an appropriate specialist to determine the etiology of the squamous cell carcinoma which was surgically removed from the floor of his mouth and the date of manifestation of the tumor. The examiner must review the claims file and must note that review in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished with all results made available to the examiner prior to the completion of the report. The examiner is requested to express an opinion whether it is as likely as not (50 percent or greater probability) that squamous cell carcinoma of the floor of the mouth manifested as a malignant tumor by February 28, 1999. The Board notes that a June 2002 pathology report found that the tumor had been present for greater than three years. The examiner should also opine whether it is as likely as not (50 percent or greater probability) that any squamous cell carcinoma of the mouth is due to asbestos exposure. In providing that opinion, the examiner is requested to address the February 2004 VA examiner's opinion that the Veteran's exposure to asbestos was at least as likely as not an etiological factor in the squamous cell carcinoma, with the long term effects of smoking. Lastly, in light of the references to medical literature, the VA examiner should consult appropriate medical literature and address the Veteran's attorney's contentions in the April 2012 letter. The examiner should set forth all examination findings, with the rationale for the conclusions reached. 4. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ Harvey P. Roberts 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).