Citation Nr: 1310591 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-31 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for cancer of the larynx. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968, including service in the Republic of Vietnam. This matter came to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for service connection for cancer of the larynx. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2012. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The record reflects that the Veteran has submitted letters from two private physicians-a Dr. Alley and a Dr. Denneny-who treated him in 1994 for squamous cell carcinoma. Some treatment records from the Veteran's 1994 treatment by Dr. Denneny. However, at his October 2012 hearing, the Veteran stated that he believed all of his records of his treatment for his cancer have not yet been associated with the claims file. The RO has not requested records from Dr. Alley or Dr. Denneny. The Veteran asserts that he developed cancer of the larynx as a result of his exposure to herbicides while stationed in the Republic of Vietnam while on active duty. Service personnel records confirm the Veteran's Vietnam service; thus, he is presumed to have been exposed to herbicides while in service. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). The diseases for which service connection may be presumed to be due to an association with herbicide agents include cancer of the larynx. 38 C.F.R. § 3.309(e). Relevant medical evidence of record reflects that both Dr. Alley and Dr. Denneny submitted letters in 1995 attesting to their belief that the Veteran's cancer-diagnosed as squamous cell carcinoma of unknown origin-could "conceivably," and with "reasonable likelihood," have originated in the larynx. Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the claimant suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold. Given the letters from the two private physicians who treated the Veteran's squamous cell carcinoma in 1994 and who both opined that it was possible that the disease had its origin in the larynx, the Board finds that the Veteran should undergo a VA examination to assess the nature and etiology of his claimed cancer of the larynx. Following certification of the Veteran's appeal to the Board, additional evidence, in the form of voluminous VA treatment records, was received by VA. No waiver of initial RO consideration was submitted with the evidence. Thus, in addition to the actions directed below by this remand, the agency of original jurisdiction (AOJ) must consider this evidence in relation to the Veteran's claim. In view of the foregoing, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, request all available medical records pertaining to the Veteran's examination or treatment at any time from 1994 to the present by Dr. Alley and Dr. Denneny. All records or responses received must be associated with the claims file. 2. Schedule the Veteran for an examination to determine the etiology of his cancer, and specifically whether it originated in the larynx. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner must provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that cancer originated in the larynx. If not, did the squamous cell carcinoma have its clinical onset in service or is it otherwise related to active service, including to the Veteran's conceded in-service exposure to herbicides? In formulating the opinion, the examiner must review and discuss the letters from Dr. Alley and Dr. Denneny, both dated in 1995, discussing the possibility that the Veteran's squamous cell carcinoma originated in his larynx, as well as any other treatment records obtained pursuant to the development directed herein. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 3. After completion of the above, re-adjudicate the Veteran's claim for entitlement to service connection for cancer of the larynx. Such re-adjudication must also include consideration of any evidence received pursuant to this remand, as well as the VA treatment records associated with the Veteran's virtual claims file since the December 2011 SSOC. If the benefit sought is not granted in full, the Veteran and his representative must then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. 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 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). _________________________________________________ THOMAS J. DANNAHER 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).