Citation Nr: 1311682 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-14 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for neuroendocrine thymic carcinoma, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied the claim on a presumptive basis as due to herbicide exposure. In a March 2009 statement of the case (SOC), the RO also denied the claim on a direct basis. In an April 2009 substantive appeal, via a VA Form 9, the Veteran requested a personal hearing before the Board at the RO, then submitted a written request to withdraw his hearing request in May 2009. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the December 2008 substantive appeal, via a VA Form 9, the Veteran asserts that neuroendocrine carcinomas are very rare and his treating physicians claim there is a connection due to other Vietnam veterans that had similar tumors. The Veteran also reports his treatment for previous diagnoses of cancer, to include the service-connected residuals of radical retropubic prostatectomy due to herbicide exposure. The Board acknowledges that neuroendocrine thymic carcinoma is not among the diseases listed under 38 C.F.R. § 3.309(e) to establish service connection on a presumptive basis due to exposure to certain herbicide agents. However, the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Following separation from service, a March 2007 private treatment record shows the Veteran had surgery for the removal of neuroendocrine carcinoma in the thymus with follow-up treatment of chemotherapy. Concerning the question of in-service disease, injury, or event and whether neuroendocrine thymic carcinoma may be associated with service, Dr. R. O. reported in a February 2007 private treatment record that the Veteran has minimal symptomatology with incidentally discovered mediastinal mass, biopsy proven neuroendocrine cancer of low grade without necrosis or significant mitoses, and the tumor may be related to his Agent Orange exposure. February 2007 private treatment records, Dr. M. B. and Dr. S. B. noted the Veteran's past medical history includes exposure to Agent Orange. Moreover, the Veteran's DD Form 214 documents the Veteran received, in pertinent part, the Vietnam Campaign Medal and Vietnam Service Medal and the RO has conceded the Veteran had service in the Republic of Vietnam in the March 2009 statement of the case (SOC). The Board finds this case presents a certain medical question that cannot be answered by the Board and is not addressed by the evidence of record. See McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1274; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, this question concerns the relationship, if any, between the Veteran's neuroendocrine thymic carcinoma, and/or residuals therefrom, and active service on a direct basis. This question should be addressed by the appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). As a result, the evidence of record presents an inadequate basis to adjudicate the issue of service connection for neuroendocrine thymic carcinoma on a direct basis. A VA examination and medical nexus opinion would assist in determining the nature and etiology of this claimed disorder on appeal. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine whether there is a nexus between his active military service and neuroendocrine thymic carcinoma. The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review has been accomplished. Any necessary testing should be conducted and any pertinent findings should be documented in the examination report, to include any residuals from neuroendocrine thymic carcinoma. The VA examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that neuroendocrine thymic carcinoma and/or residuals therefrom had its origin in service or is in any way related to the Veteran's active service. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. 2. Thereafter, the issue on appeal should be readjudicated on a direct basis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ MARK W. GREENSTREET 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).