Citation Nr: 1315431	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  09-43 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for cancer of the left tonsil, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Pennsylvania Department of Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1969 to June 1971, including service in the Republic of Vietnam for which he earned a Purple Heart medal and a Combat Action Ribbon.

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

In November 2012, the Veteran appeared at a Video Conference hearing before the undersigned.  A transcript of that hearing is in the claims file.

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 seeks service connection for cancer of the left tonsil, which he asserts was caused or aggravated by his exposure to herbicides such as Agent Orange during his service in Vietnam.  The Veteran's treating physicians have supplied opinion statements indicating that they believe this disability should be covered by the provisions for presumptive service-connection for herbicide exposure.  See, e.g., 38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  However, the scientific evidence amassed by VA thus far has determined that tonsillar cancers are not entitled to coverage under the presumptions because no clear statistical correlation with herbicide exposure has been found.

While presumptive service connection is not warranted for the Veteran's cancer of the left tonsil, this fact does not preclude an award of service connection based on direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  The Veteran was provided with a VA examination in February 2009 in relation to his claim of service connection for cancer of the left tonsil.  However, the VA examiner was not asked to provide an opinion with respect to etiology or causation of the cancer, and the examination is therefore inadequate for adjudicative purposes.

Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").  Thus, a new evaluation of the Veteran, which specifically addresses the question of direct causation, is required upon remand.


Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran an appropriate VA evaluation to determine whether it is at least as likely as not that his cancer of the left tonsil was incurred in or aggravated by his military service, to include exposure to herbicides such as Agent Orange.  The evaluator should specifically address the risk factors for tonsillar cancer and the scientific literature on the question of cancer resulting from herbicide exposure.  The evaluator should provide the rationale for any opinion(s) rendered.  A copy of the claims file should be provided to the examiner for review.

2. On completion of the foregoing, the claim should be adjudicated.  If the decision remains adverse to the Veteran, then provide him 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).

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 H. O'Shay
Acting 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).