Citation Nr: 1306927	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  07-35 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

Entitlement to service connection for squamous cell carcinoma of the right tonsil, claimed as throat cancer, including as due to exposure to Agent Orange.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1967 to March 1974.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is the record.

In October 2011, the claim was remanded for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directive.  Stegall v. West, 11 Vet. App. 268, 271   (1998).  But the additional evidence raise questions that need be addressed before deciding the claim on merits, for this reason, the appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND 

The Veteran served in Vietnam during the Vietnam era and it is presumed that the Veteran was exposed to Agent Orange.  The Veteran asserts that he has throat cancer caused by exposure to Agent Orange and that throat cancer should be considered a form of respiratory cancer by anatomical proximity to the larynx, which is subject to presumptive service connection due to exposure to Agent Orange. 

As the evidence of record is insufficient to decide the applicable theories of service-connection, further development under the duty to assist is needed. 



Accordingly, the case is REMANDED for the following action:

1.  Ensure VCCA compliance and notify the Veteran that he may establish service connection for a type of cancer not subject to presumptive service connection due to exposure to Agent Orange with proof of actual causation, that is, proof the exposure to Agent Orange actually caused his cancer.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (presumptive service connection is not the sole method for showing causation in claim under the Veteran's Dioxin and Radiation Exposure Compensation Standards Act).

2.  Arrange to have the Veteran's file reviewed by a VA oncologist to determine. 

a).  Is the primary site of the squamous cell carcinoma other than the right tonsil?

b).  If the primary site of the squamous cell carcinoma is the right tonsil, then is the cancer a type of pharyngeal cancer.  

c).  If the squamous cell carcinoma of the right tonsil is type of pharyngeal cancer is there any medical or scientific evidence that pharyngeal cancer should be considered a respiratory cancer of the larynx.  








3.  After the development is completed, adjudicate the claim.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The 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.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
George E. Guido Jr.
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).



Department of Veterans Affairs