Citation Nr: 1307626 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-40 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968, which included service in the Republic of Vietnam. The Veteran died in November 2006, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction has since been returned to the RO in St. Louis, Missouri. 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 appellant asserts that the Veteran's cause of death as noted on his death certificate, metastasized breast cancer, resulted from his Vietnam service during which he is presumed to have been exposed to Agent Orange. The Veteran was diagnosed with breast cancer in August 2001, which metastasized to his bones at some point after November 2001, ultimately resulting in his death in November 2006. The appellant has submitted an opinion authored in June 2009 by the Veteran's private treating orthopedist, who states that due to the rare nature of the Veteran's cancer (male breast cancer) and the fact that he had no significant risk factors for developing breast cancer other than Agent Orange exposure, his Agent Orange exposure "contributed directly" to his breast cancer, which in turn caused his death. The factual basis for this opinion is unclear, as the evidence does not demonstrate (1) how the orthopedist determined that Agent Orange exposure is a risk factor for developing breast cancer; and (2) that the orthopedist had access to any oncology records reflecting the history of his breast cancer. As a result, the opinion is not sufficiently probative to serve as a basis for granting service connection. The opinion does, however, trigger VA's duty to obtain a probative medical opinion predicated on a review of all available relevant evidence. Before this opinion is obtained, efforts to obtain outstanding, pertinent records must be made. Most significantly, the Veteran's private oncology treatment records from November 2001 to November 2006 are not in the Veteran's claims file. Records from the private orthopedist who authored the 2009 medical opinion must also be requested. Any VA treatment records that were created between August 2005 and July 2006 must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatments from the St. Louis VA Medical Center from August 2005 to July 2006. 2. Request the Veteran's private treatment records from St. Luke's Hospital and Dr. Frank Tull, 12266 De Paul Drive, Suite 220, Bridgeton, MO, 63044. 3. After completion of this development, obtain a VA oncologist's opinion regarding the etiology and the Veteran's breast cancer. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to: (1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's breast cancer began during or is otherwise related to service; (2) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's breast cancer was related to his Agent Orange exposure during service; and (3) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's breast cancer was caused or aggravated by his service-connected right thigh gunshot wound and/or right knee shrapnel wound. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner is further advised that the omission of a disease, such as breast cancer, from VA's list of presumptive herbicide-related diseases cannot serve, alone, as a basis for a negative opinion. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the appellant and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).