Citation Nr: 1317573 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-40 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the throat, to include as due to in-service herbicide exposure. 2. Entitlement to service connection for a right shoulder disorder as secondary to squamous cell carcinoma of the throat. 3. Entitlement to service connection for a neck disorder as secondary to squamous cell carcinoma of the throat. 4. Entitlement to service connection for cataracts as secondary to squamous cell carcinoma of the throat. 5. Entitlement to service connection for a disorder manifested by difficulty swallowing as secondary to squamous cell carcinoma of the throat. 6. Entitlement to service connection for a dental disorder claimed as lack of oxygen to the gums as secondary to squamous cell carcinoma of the throat. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from April 1966 to April 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran and his spouse testified before a VA Decision Review Officer (DRO) at a January 2010 hearing conducted at the RO. A transcript of the hearing is of record. 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 asserts entitlement to service connection for squamous carcinoma of the right neck and head, claimed as throat cancer. He contends this disability is directly related to in-service exposure to herbicides, namely Agent Orange. He has also identified a number of conditions he claims were caused or aggravated by his neck/head cancer. Initially, the Board observes the Veteran served in the Republic of Vietnam from October 1966 to October 1967; therefore, herbicide exposure is presumed. 38 C.F.R. § 3.307(a)(6)(iii) (2012). Essentially, the Veteran contends that reasonable doubt should be resolved in his favor in determining that his head/neck cancer originated in the respiratory system. See, e.g., DRO hearing transcript. Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). Respiratory cancer (specifically cancer of the lung, bronchus, larynx or trachea only) is subject to the presumption of service connection. Id. Even if a Veteran is found not entitled to a regulatory presumption of service connection, however, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). See also McCartt v. West, 12 Vet. App. 164, 167 (1999). Private treatment records indicate the Veteran was diagnosed in early 2003 with poorly differentiated squamous cell carcinoma of the right neck with no primary site identified. The Veteran submitted three private medical opinions in support of his claim. August and September 2008 opinion from Drs. Akin and Harper, respectively, note the Veteran's cancer "is thought" to have originated from the epithelial lining of the upper respiratory tract, particularly the pharyngeal area. Dr. Harper further stated that this should meet the guidelines as being a respiratory cancer since bronchus cancers are typically squamous cell in origin. In January 2010, Dr. Akin clarified that the Veteran's cancer "could be a respiratory cancer" because of the right parotid tumor excised in 2003. However, Dr. Akin did not further clarify why a tumor of the parotid gland would be indicative of a respiratory cancer nor did he provided any other explanation as to why the Veteran's throat cancer should be characterized as a respiratory cancer as defined by 38 C.F.R. § 3.309(e). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to significant weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Based on the foregoing, the Board finds that there are inadequacies in the current opinions of record in that the opinion is either not fully articulated or lacks a reasoned analysis. The Veteran has not been provided a VA examination, nor has a VA medical opinion been obtained, in conjunction with his claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, supra. In light of the private medical opinions of record, a VA medical opinion should be obtained to determine whether there is an etiological link between his throat carcinoma and active service, to include whether his cancer is at least as likely as not a form of respiratory cancer subject to the presumption of service connection under 38 C.F.R. § 3.309(e). Should the Veteran's right neck carcinoma be linked to active service, an opinion should also be obtained to determine whether the disability has resulted in the claimed secondary conditions, including disabilities of the right shoulder and neck; cataracts; difficulty swallowing; and/or a dental condition. See generally 38 C.F.R. § 3.310 (2012). Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder to a VA oncologist to obtain a medical opinion addressing the nature and etiology of his squamous cell carcinoma of right neck and head claimed as throat 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 physician. If the physician 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 physician for review. Following a review of the entire record, the physician should provide an opinion as to whether the Veteran's squamous cell carcinoma of the throat 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), etiologically related to (incurred in, caused or aggravated by) his active service, to include presumed herbicide exposure. In offering this opinion, the examiner must also address the private medical opinions of record, specifically opining as to whether the Veteran's diagnosed cancer should be considered a respiratory cancer (cancer of the lung, bronchus, larynx or trachea) as defined by 38 C.F.R. § 3.309(e) (2012). A complete rationale should be given for all opinions and conclusions expressed. 2. If and only if (1) above is answered in the affirmative, schedule the Veteran for the appropriate VA examination(s) to address the nature and etiology of claimed secondary disabilities related to his squamous cell carcinoma of the throat. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. 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 in conjunction with the examination. 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. Following a review of the claims file and physical examination of the Veteran, the examiner is requested to identify any residuals of the Veteran's squamous cell carcinoma of the throat, specifically commenting as to whether the disorder has (1) proximately caused; or (2) aggravated (chronically worsened) disorders resulting in the following: a. A right shoulder disability; b. A neck disability; c. Cataracts; d. A disorder manifested by difficulty swallowing; e. A dental condition (claimed as lack of oxygen to the gums). If any of the above are identified, provide an appropriate diagnosis as warranted. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ S. L. Kennedy 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).