Citation Nr: 1305501 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 10-34 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cancer of the tonsils, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in January 2012 when the Board reopened the Veteran's previously denied claim for entitlement to service connection and remanded it for further development. It has now returned to the Board for further appellate consideration. 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 In January 2012, the Board directed that VA obtain a clinical opinion as to the etiology of the Veteran's cancer. Specifically, the Board requested that the clinician 1) opine as to whether the Veteran's tonsil cancer originated in the larynx or the pharynx, and 2) opine as to whether it is at least as likely as not that the Veteran's cancer was related to service. A medical opinion was obtained in October 2012. The Board finds, upon review of the opinion, that it does not comply with the Board's remand directives. Where remand orders of the Board are not complied with, the Board errs as matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The clinician opined that the Veteran's cancer was in the pharynx; however, she failed to adequately give an opinion as to etiology. The clinician stated that she "cannot state that [the Veteran's] pharyngeal malignancy is related to his Agent Orange exposure at this time." The clinician need not provide an opinion to a 100 percent certainty, rather, she should state whether it is at least as likely as not, given the Veteran's history, that the Veteran's cancer is related to service. Thus, the Board finds that another remand is warranted to have a supplemental opinion obtained. In addition, the evidence reflects that the Veteran has been in receipt of Social Security Administration (SSA) benefits since approximately 1996. Although the Veteran's cancer was not diagnosed until approximately 2005, it is unclear whether any SSA records are relevant to the claim. VA should attempt to obtain SSA records pertinent to the Veteran. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 2. After completion of the foregoing and receipt of any records, obtain a supplemental medical opinion in this case. The clinician should review the claims file, to include this remand. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cancer of the tonsils is causally related to active service, to include herbicide exposure. The clinician's opinion should consider the Veteran's history, the May 2009 opinion of Dr. J.Q., and the scientific/medical literature associated with the claims file. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on her clinical experience, medical expertise, and established medical principles. The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. 3. Thereafter, readjudicate the issue of entitlement to service connection for cancer of the tonsils. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 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. 2012). _________________________________________________ M. E. LARKIN 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) (2012).