Citation Nr: 1306397 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-32 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for squamous cell carcinoma of the head and neck, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from October 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in August 2011 by the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. The Board notes that an October 1969 rating decision issued by the RO reflects that service connection was denied for a neck condition. This decision was not appealed by the Veteran. The claimed neck condition also was not in any respect noted to involve either cancer, or exposure to Agent Orange. In December 2010, the Veteran filed a claim for cancer. This claim was based upon his alleged exposure to Agent Orange. Thus, the claim on appeal is a new claim, rather than one to reopen. 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 avers that he has squamous cell carcinoma of the head and neck due to his exposure to certain herbicides in Vietnam, to include Agent Orange. See December 2010 VA Form 21-4138. Based on review of the facts of the case, remand is necessary for the service connection claim. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The diseases that are related to herbicide exposure include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. See 38 C.F.R. § 3.309(e) (2012). The Veteran had service in the Republic of Vietnam from February 1968 to March 1968. As such, he is presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). However, as noted above, squamous cell carcinoma is not a condition for which the Agent Orange presumption is available. See 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Board will proceed with its consideration of this matter based on the holding in Combee. Treatment records show that the Veteran has been diagnosed with skin cancer of the head and neck. Specifically, the medical record includes numerous private medical records, first dated in 2010, involving extensive findings relating to treatment afforded the Veteran. Of particular note, a December 2010 letter from a private physician, L.J.W., indicates that he had been treating the Veteran for squamous cell carcinoma of the head and neck (SCCHN) involving the buccal mucosa, and alveolar ridge with extensive cranial nerve involvement. The Veteran's staging was noted to be "T4N0M0." The physician added that the Veteran had been treated with three induction cycles of chemotherapy followed by weekly concurrent chemoradiation. While the Veteran was noted to presently appear to be free of disease, the physician commented that he remained at risk for recurrence in the future. Subsequently dated private medical records show that the cancer did in fact return. The physician also pointed out that the Veteran had served in the Vietnam War, during which time he was exposed to Agent Orange. He added that there is "ample causal evidence that exposure to agent orange increases the risk of many cancers, including SCCHN." As such, the first element of Davidson is met. A review of the service treatment records is negative for any complaints of skin cancer or other skin disorders. However, the Veteran has not alleged that his skin cancer began in service. Rather, he claims that he was exposed to Agent Orange in service. As noted above, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to Agent Orange. As such, the second element of Davidson is also met. Although in-service exposure to Agent Orange is conceded and while a current disability has been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's presumed in-service herbicide exposure and his current skin cancer. See Davidson. The evidence of record conforms that the Veteran was in Vietnam from February 1968 to March 1968. As above noted, however, the Veteran was exposed to Agent Orange while serving in Vietnam. While the evidence does not warrant presumptive service connection for skin cancer (see 38 C.F.R. §§ 3.307(a)(6), 3.309(e)), the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee. A diagnosis of squamous cell carcinoma of the head and neck is of record. See December 2010 private medical letter from L.J.W. As part of this letter, as mentioned, the physician commented that there was "ample causal evidence" that exposure to Agent Orange increased the risk of many cancers, including SCCHN. The Board finds that the December 2010 private physician's opinion supports neither a grant nor a denial of service connection for squamous cell carcinoma of the head and neck. The Board further finds that the examiner's statement that "ample causal evidence" existed to support a finding that exposure to Agent Orange "increases" the risk of acquiring SCCHN is too speculative to be considered a positive or negative etiological opinion. Opinions consisting of speculation or uncertainty are inadequate for establishing service connection. Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Bostain v. West, 11 Vet. App. 124 (1998) (a private physician's opinion that a Veteran's preexisting service-related condition "may have" contributed to his ultimate demise was too speculative, standing alone, to be deemed new and material evidence to reopen cause-of-death claim); Obert v. Brown, 5 Vet. App. 30 (1993) (a medical opinion expressed in terms of "may be related to service" necessarily implies "may or may not," and therefore is too speculative to establish a plausible claim); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (a medical professional's use of equivocal language such as "may or may not be related to service" was too speculative to constitute a definitive opinion on issue of causation). The Board finds that further development of the record is needed prior to appellate consideration of the claim. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the following reasons, the Board finds that a VA examination is necessary to decide the claim. The evidence here shows that the Veteran has skin cancer of the head and neck, that he was exposed to Agent Orange in service, and a medical opinion (while both speculative and uncertain) is of record. This opinion essentially establishes that "ample causal evidence" exists relating to the increased risk of developing SCCHN as a result of being exposure to Agent Orange. The opinion, however, did not include a discussion as to what exactly the physician was referring to by his use of the words "ample casual evidence." This language, in the Board's opinion, amounts to insufficient competent evidence necessary for a decision to be made at this juncture. In this case, a VA examination and opinion is needed to determine whether the Veteran has a current disorder (or, if not current, such a disorder has been shown to have been manifested during the course of the Veteran's appeal; see McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brokowski v. Shinseki, 23 Vet App 79 (2009)) manifested by SCCHN, and, if so, whether it is at least as likely the result of his active military service, to include as due to exposure to herbicides such as Agent Orange during his service in Vietnam, as it is to some other cause or factor. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for an appropriate VA examination with regard to his claim seeking service connection for squamous cell carcinoma of the head and neck (SCCHN). It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. Any medically indicated special tests should be accomplished. The examiner should respond to the following: a) Does the Veteran have (to include at present, or at any time in the course of his appeal) a diagnosis of skin cancer, to include SCCHN? b) If skin cancer, to include SCCHN is diagnosed, is it at least as likely as not that the skin cancer is the result of the Veteran's active military service, to include his presumed exposure to herbicides (Agent Orange) in Vietnam, as it is the result of some other cause or factors? The examiner must provide a rationale or explanation for his or her opinion which discusses the facts of this particular case in conjunction with the medical principles involved, including what is known about the likely causes of skin cancer. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions is necessary - to include providing citations to pertinent factual findings and in-service medical history -- and a discussion of the medical principles involved would be of considerable assistance to the Board. In addition, the reviewer/examiner must explain the basis for any and all provided opinions. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC should notify the Veteran that it is his responsibility to report for any VA examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Following completion of all indicated development, the RO/AMC should then readjudicate the instant claim of service connection for squamous cell carcinoma of the head and neck, to include as due to Agent Orange exposure, in light of all the evidence of record. If the benefit sought on appeal remains denied, the RO/AMC should issue a Supplemental Statement of the Case (SSOC), and the Veteran and his representative should be afforded time in which 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 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). _________________________________________________ ROBERT E. SULLIVAN 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).