Citation Nr: 1316191 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-03 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for carcinoma of the stomach, including as a result of herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1965 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in April 2012 so that private treatment records could be obtained and a VA compensation examination performed. These were accomplished and the case returned to the Board for further appellate consideration. The case was again remanded by the Board in January 2013 so that an opinion regarding new evidence submitted by the Veteran could be obtained. The requested opinion was not provided and the case must be returned so that this may be accomplished. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran contends that service connection is warranted for gastric cancer that is believed to have resulted from herbicide exposure while the Veteran served in the Republic of Vietnam (RVN). It is noted that, while on active duty, the Veteran had service in the RVN and is therefore presumed to have been exposed to herbicides. As noted in the January 2013 remand, the Veteran's representative argued that the VA examiner who rendered an opinion regarding the etiology of the Veteran's stomach cancer did not render as complete a medical opinion in that the examiner confined his opinion only to the herbicide Agent Orange, but that the Veteran is presumed to have been exposed to other defoliants such as Agent Pink and had been exposed to aircraft fuel that could be linked to the development of stomach cancer. Medical literature linking the development of stomach cancer to the chemical 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (2, 3, 7, 8,-TCDD) was submitted for consideration. The January 2013 remand was directly linked to the submission of this additional evidence. The examiner was instructed to comment on the information submitted from the Environmental Protection Agency, Technology Transfer Network, Air Toxics Web Site, 2, 3, 7, 8-Tetrachlorodibenzo-p-Dioxin (2, 3, 7, 8,-TCDD), that was submitted for consideration. Although the examiner submitted an addendum to his examination report in March 2013, no comment regarding 2,3,7,8,-TCDD was included. As such, the case must, once again, be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should arrange for the Veteran's claims folder to be reviewed by the VA examiner who completed the April 2012 VA examination and March 2013 addendum for a supplemental opinion. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's stomach cancer is related to service, including exposure to all defoliants to which the Veteran is presumed to have been exposed or exposure to aircraft fuel during service. The examiner must comment on information submitted from the Environmental Protection Agency, Technology Transfer Network, Air Toxics Web Site, 2, 3, 7, 8-Tetrachlorodibenzo-p-Dioxin (2, 3, 7, 8,-TCDD), contained in the claims file. If the VA examiner is not available, the Veteran should be scheduled for a new examination so that the requested opinion may be obtained. The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). 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 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).