Citation Nr: 1319810 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-38 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of lung cancer, to include as due to carbon tetrachloride exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to carbon tetrachloride exposure. 3. Entitlement to service connection for a liver hemangioma, to include as due to carbon tetrachloride exposure. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran served on active duty from November 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the claimed disabilities. The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims in June 2010 . In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the undersigned VLJ set forth the issues to be discussed at the hearing. The Veteran's representative asked questions pertinent to the requirements of service connection, and the case was remanded to obtain evidence that might substantiate the claims. See June 2010 hearing transcript. Thus, any error in this regard is nonprejudicial. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. This matter was remanded by the Board in July 2010 for additional development. In January 2011, the Board denied the service connection claims for residuals of lung cancer, COPD, and a liver hemangioma, all to include as due to carbon tetrachloride exposure. Thereafter, the Veteran appealed the Board's January 2011 denials of service connection for residuals of lung cancer and COPD to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court vacated the entire January 2011 Board decision and remanded it to the Board for additional consideration. In an August 2012 letter, the Board informed the Veteran that its January 2011 decision had been vacated by the Court. The letter advised the Veteran that if he wished to submit additional argument or evidence, it should be done so within 90 days and a 90-day Letter Response Form was enclosed to assist the Veteran. The Veteran returned the form and checked the box indicating that he was submitting argument and/or evidence and asked that his case be sent to the Agency of Original Jurisdiction (AOJ) for review of the newly submitted evidence. The additional argument and evidence pertained only to the Veteran's service connection claims for residuals of lung cancer and COPD, and therefore such claims were remanded. However, the Board found that the Veteran's liver claim should also be remanded for further development. The Board then remanded the claims in October 2012. The case has been return for review by the Board. The Board will adjudicate the issues regarding service connection for COPD and lung cancer. However the Board will again remand the issue of service connection for a liver hemangioma to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's lung disorders (COPD and lung cancer) are not attributable to service. CONCLUSION OF LAW The criteria for the establishment of service connection for COPD and lung cancer are not met. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c), 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided letters dated in August and November 2007 that indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The letters, also provides notice pertaining to the downstream disability rating and effective date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private treatment records, VA outpatient treatment reports, adequate VA examination and opinion, memorandum of unavailability of information, as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's October 2012 remand directive, the RO attempted to obtain records from the Navy regarding the use of carbon tetrachloride, but the Navy was unable to provide any information in this regard. This was outlined in a March 2013 memorandum of unavailability of records from the Navy. Additionally, he was provided VA compensation examination for medical opinion concerning whether the claimed disabilities are related to his military service. The findings regarding the lung disorders were reported in a manner and format enabling the Board to address the elements needed to show entitlement to service connection. The Board finds that the VA examination is sufficient as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its October 2012 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). II. Statutes, Regulations, and Cases Governing Claims for Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Certain chronic diseases (such as malignant tumors) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). III. Whether Service Connection is Warranted for COPD and Lung Cancer In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his lung disorders are related to his active service. Considering the first element of the Shedden analysis, evidence of current disability, private treatment records dated February 2001 indicate a diagnosis of COPD, and additional records dated April 2001 reflect a diagnosis of lung carcinoma. Although there is no disputing the Veteran currently has lung disorders, the Board must still determine the etiology of such disability, and particularly insofar as whether they were caused or aggravated by his military service or, instead, are the result of other unrelated factors. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). In regard to the second element of Shedden, in-service incurrence, STRs are absent of any complaints, findings, or diagnoses of lung disorders. The Veteran underwent examinations in January 1951, August 1951, November 1953, and July 1954. No relevant abnormalities were noted. However, through written statements and his oral testimony, the Veteran alleged that his lung cancer and COPD were the result of exposure to carbon tetrachloride in service. He stated that his duties included the repair and maintenance of radiographic and cryptographic instruments. The cleaning process for these devices involved the use of carbon tetrachloride. He handled the chemical for up to 4 or 5 hours each working day over a period of 17 months. This resulted in the absorption of carbon tetrachloride through the skin, as well as the inhalation of carbon tetrachloride fumes. He believed this extended exposure directly resulted in his lung cancer and COPD. He denied any exposure to toxic chemicals as a result of his post-service occupational duties, but acknowledged a 34 year history of smoking. While the objective evidence is negative regarding any findings referable to respiratory conditions; his statements regarding the type and extent of his exposure to chemicals in service are competent and consistent with the circumstances, conditions and hardships of his service to have probative value and warrant conceding he sustained the type of chemical exposure in service. 38 U.S.C.A. §§ 1154(a) and (b); 38 C.F.R. § 3.304(d). Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis. The question then becomes whether his current respiratory disorders are attributable to the exposure he experienced in service or, instead, the result of other unrelated factors. Establishing evidence of exposure to carbon tetrachloride does not obviate the need to still have a competent and credible medical nexus evidence linking any current disability to that injury in service. And, unfortunately, in this particular instance the most probative evidence is against the claims for lung disorders. The Veteran submitted an abstract concerning the occupational burden of COPD. Turpin et al. This article acknowledges that COPD is attributed predominantly to tobacco smoke, but it also considered occupational exposure to different agents as risk factors. This study was based on telephone interviews of 2,061 U.S. residents between the ages of 55-75 years of age. The telephone study took into consideration of exposure (self-reported) to vapors, gas, dust, or fumes. This study did not specifically refer to carbon tetrachloride. He also submitted the conclusions of another abstract that examined COPD in nonsmokers. This study also acknowledged that tobacco smoking is the major risk factor is COPD but also noted that a large population of nonsmokers developed COPD. This study concluded that COPD is associated with biomass fuel, occupational exposure to dusts and gases, history of pulmonary tuberculosis, chronic asthma, respiratory-tract infections during childhood, outdoor air pollution, and poor socioeconomic status. Again, this study did not specifically refer to carbon tetrachloride. He also included several general articles on the toxicity, safe use, production, properties, ways of exposure, history, governmental regulations, and governmental guidelines regarding carbon tetrachloride. Lastly, he submitted information regarding the Veterans Carbon Tetrachloride Benefits Act, which was legislation aimed at providing a presumption of service connection for certain specified conditions in the case of veterans who were exposed to carbon tetrachloride during service. The legislation did not become law. A VA examination was conducted in August 2012. The examiner reviewed the claims file, and noted the circumstances surrounding the Veteran's initial diagnoses of cancer and COPD. Based on the evidence in the claims folder and a physical examination of the Veteran, the examiner diagnosed severe COPD and residuals of lung cancer, status post-surgery. However, she concluded that COPD and lung cancer were less likely than not caused by or a result of carbon tetrachloride exposure during service. The examiner, in providing her rationale, noted that while the chemical was a known animal and suspected human carcinogen, the Veteran had longer exposure (30 years) to tobacco, which is a known risk factor for both COPD and lung cancer. Smoking was estimated to account for 90 percent of all lung cancers, and a current smoker with a 40 pack year history was 20 times more likely to develop lung cancer than a non-smoker. The examiner also relied on medical literature which did not show carbon tetrachloride as a risk factor for lung cancer. As noted above, the Board eventually denied the Veteran's claims in January 2011. In this decision, the Board found that the Veteran did not have the medical knowledge required to establish a medical nexus between the respiratory disorders and in-service exposure to carbon tetrachloride. The Court found that the Board failed to consider the fact that the Veteran is a licensed chiropractor, and in doing so, the Board also failed to appropriately assess his competency as well as the impact of his statements in regard to his claims. The Board remanded the case in October 2012 for additional medical comments regarding the etiology of his claimed disabilities. In a February 2013 opinion, another VA physician also found that it was unlikely the Veteran lung disorders were related to his carbon tetrachloride use during service. The examiner stated: I have reviewed the entire C-file with special emphasis on remand and the abstracts provided by the Veteran. Let me begin by commenting on the abstracts submitted by the Veteran: 1. Article by Trupin, et al. I am truly surprised that any peer review journal would have published something like that. It was done purely through telephone interviews. There was no documented evidence that the telephone responders even had COPD or what their toxin exposure actually was. People tend to over rate their exposure anyway. The conclusion was that "Past occupational exposure significantly increased the likelihood of chronic obstructive pulmonary disease independent of the effects of smoking ["]. This poorly done "unscientific" study flies in the face of a mountain of evidence that smoking is the cause of 90% of COPD and lung cancer in this country. 2. The second article was published in India where conditions for workers and citizens are horrific compared to the conditions in this country. Yes the authors are correct that biomass exposure is significantly more likely to cause COPD than in India. As matter of fact, the most common cause of COPD in non-industrialized countries is indoor air pollution. This is most commonly due to pollution caused by indoor stoves used for cooking. However, the veteran was not working in a non-industrialized country. Even then the thrust of the article was the worldwide cause of COPD, not in the U. S. [Ninety percent] of lung cancers in this country are caused by smoking and this is supported by a mountain of current and past evidence. The veteran admitted to a 48 pack year history of smoking as per his statement in the [m]edical records of the West Palm Beach VA dated 8/15/2005. Carbon tetrachloride is considered "possibly" carcinogenic by the [International] Agency for Research on Cancer (IARC), and "probably" carcinogenic by the EPA. However, nowhere is there any attributed risk for lung cancer, COPD or hemangioma of the liver by any reporting agency. I should also mention that OSHA in its 2011 report on carcinogens, twelfth edition, in the paragraph above "regulations" states that they have estimated that 3.4 million workers were potentially exposed to carbon tetrachloride. Finally, a hemangioma of the liver is a congenital benign finding, unrelated to any toxin and doesn't need any attention or treatment of any kind. It is quite common and is often found incidentally during imaging studies of the liver. It is extremely unlikely to ever cause any problems. It is not expected to ever change [,] and is almost certainly a congenital defect. The EPA uses mathematical models based on human and animal studies to estimate the probability of a person developing cancer from continuously breathing air containing a specified concentration of a chemical. For an individual breathing air containing 7.0 ug/meter cubed or more of carbon tetrachloride over a lifetime, this would result in not greater than a one in a ten thousand chance of developing cancer (ANY cancer). Also note that the veteran only had possible exposure for 17 months. When you take into consideration that animal and human studies have failed to show any link between carbon tetrachloride and lung cancer or COPD, the chance that carbon tetrachloride caused his lung illness is nil. When you compare the risk of developing lung cancer (1 in 5 smokers) or COPD in smokers, (also about 1 in 5), it stretches the bounds of credibility to believe that carbon tetrachloride had any role in causing his lung cancer or his COPD. Blair, et al. in 1990 published an article in the Occupational Environmental Medicine where he looked at dry cleaning workers who prior to 1978 used carbon tetrachloride extensively and were exposed every day for years. [T]here was no increased incidence of lung cancer or lung disease. The most germane study was conducted by Bond et al in 1986 where he actually conducted a case control study of lung cancer among a large cohort of chemical workers in the United States. This cohort consisted of 19,608 white male workers employed for one year or [more] between 1940 and 1980 at a large facility which produced chlorinated solvents, plastics, chlorine, etc. a specific report on carbon tetrachloride was included. "[N]o association was observed between having been exposed to carbon tetrachloride and lung cancer. While the veteran presents an abstract of an article that relies on telephone interviews to make a case for the significance of occupational exposure [causing] lung disease, there is a mass of medical literature to the contrary that he has ignored. I do not agree with his claim that literature relating COPD primarily to smoking is outdated. I should note that the most common causes of COPD caused by inhalants in the U.S. are caused by exposure to silica and cadmium. There is no such exposure documented in the veteran's records. [I]n conclusion it is my professional opinion that it is less likely than not that exposure to fumes such as carbon tetrachloride played any role whatsoever in his lung disease or his hemangioma. Consequently, this physician also concluded that the Veteran's respiratory disorders are unrelated to military service. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran is a licensed chiropractor and as such, may provide competent medical evidence in this case. In this regard, the medical opinions of record, both for and against his claims, are competent as they were provided by medical professional possessing the necessary medical competence, education, training, qualifications or experience to, according to 38 C.F.R. § 3.159(a)(1), offer medical diagnoses, statements or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the Board also must assess the credibility of these medical opinions to determine their ultimate probative value in relation to each other and, in so doing, may favor one over another provided there is sufficient explanation of the underlying reasons and bases. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). In deciding these claims, the Board must analyze the credibility and thus, the probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for rejecting or accepting any material evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Obviously, this responsibility is more difficult when, as here, medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, though, there are indeed legitimate reasons for finding the VA opinions more credible and thus, entitled to more probative weight than the Veteran's statements and supporting evidence that he asserts favors his claim. In this regard, the Board finds the statements of the Veteran, a chiropractor, less credible in light of the overall record and the contrary opinion of the VA compensation examiners. The Veteran bases his opinion on the fact that he was exposed to carbon tetrachloride during service and on some of the information he has collected and submitted in support of his claim. While it is true that the Board found it credible that the Veteran may have been exposed to carbon tetrachloride during service, the Board finds that the Veteran's opinion is mostly limited in terms of credibility and its ultimate probative value because he provides no sound explanation of why in this particular case he concludes that his current respiratory disorders are related to the carbon tetrachloride particularly in light of the explanation and rationale provided by the February 2013 VA examiner. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. A personal history cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. The Veteran's statements simply do not provide sufficient supporting rationale as reason or justification for concluding the currently diagnosed lung disorders are related to his military service and, in particular, to the carbon tetrachloride exposure he admittedly may have been exposed to during service. In order to support his arguments, the Veteran submitted general articles regarding carbon tetrachloride and its affects. The article regarding the formerly proposed Veterans Carbon Tetrachloride Benefits Act clearly indicates that no such legislation was enacted. In reviewing the remaining treatises/studies, the Board notes that they are not sufficient to demonstrate the requisite medical nexus for a claim for service connection. A medical article as evidence must demonstrate a connection between the present condition and the service-connected disorder. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The literature suggests there may be various consequences to excessive exposure to tetrachloride as well as other chemicals. This literature does not discuss generic relationships with a degree of certainty that, under the facts of this case, serves to establish a link between the Veteran's claimed disabilities and his service. See Sacks v. West, 11 Vet. App. 314 (1998). More importantly, the VA physician in 2013 points to the shortcomings of two of the articles submitted by the Veteran. As such, this literature is of limited probative value to the issue at hand. Conversely, the VA examiners based their opinions on reasonable medical principles that are supported by the evidentiary record. The VA examiners' opinions were predicated upon a review of the claims file, including the service records and VA medical records, the Veteran's reported history and risk factors, a physical examination of the Veteran, and testing results. The examiners also provided full rationale to support their findings and conclusions, including citing relevant findings (or lack thereof) from the Veteran's service treatment reports and VA medical records, citing to more specific medical articles, and listing his past risk factors, including his extensive tobacco use. While the Veteran attempts to minimize his effect of his extensive history of smoking, the more credible and probative medical evidence clearly demonstrates that his history of tobacco usage is a significant factor that must be considered. The Board also finds the VA examiners' conclusions are consistent with the evidence of record and afford the opinions of the VA physicians' greater weight than the statement provided by the Veteran. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). Here, the VA compensation examiners considered his in-service chemical exposure. But, as importantly, these examiners also offered a more likely scenario for the source of the Veteran's lung disorders, pointing out that they are often associated with extensive tobacco usage especially considering the years he spent in service versus his years of high risk activity. The examiners readily conceded that the Veteran had experienced the type of chemical exposure claimed in service but in the process also pointed out the Veteran tobacco usage as a more likely cause. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). In fact, it appears that that some of the articles presented by the Veteran readily agree that smoking is a predominate factor in the development of COPD. Further, the most recent VA examiner carefully outlined the reasons why the information submitted by the Veteran was, in fact, not supportive of his claim. Ultimately, the Board must consider all the evidence relevant to the claims, including the availability of medical records, the nature and course of the disease or disability, his high risk activity (tobacco use), and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). For the reasons outlined above, the Board finds that the VA examiners' opinions are more credible and entitled to greater probative weight than that submitted by and on behalf of the Veteran. For these reasons and bases, the preponderance of the evidence is against the claims for service connection for lung disorders. And since the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lung disorders, COPD and lung cancer, is denied. REMAND The Veteran also claims that his diagnosed liver hemangioma is a result of carbon tetrachloride exposure. In regards to this claim, the Board finds that the development directed by the Board in its last remand was not completely accomplished. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the Board remanded this claim to clarify whether the Veteran's liver hemangioma is a congenital defect or disease as defined by VA. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. The VA examiner acknowledged that the liver hemangioma was a congenital defect. As explained in the prior remand, VA compensation may not be paid for a congenital defect disorder as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits. Therefore, generally speaking, a congenital disorder is not a condition for which service connection is available as a matter of express VA regulation. The only possible exception is if there is additional disability due to aggravation of the congenital defect during service by superimposed disease or injury. Therefore, where the Veteran has been diagnosed with a congenital defect, as is the case here, the issue becomes whether there is any superimposed chronic pathology which was present during active duty. While the VA physician explained the general nature of a liver hemangioma and indicated that it was unrelated to any toxins, there are no remarks regarding whether there was superimposed chronic pathology concerning his liver disorder. Therefore, another opinion is needed as to whether his liver disorder was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4). 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). Expedited handling is requested.) 1. The AOJ should forward the claims file to the examiner who performed the February 2013 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. If the examiner cannot offer the requested opinion without examining the Veteran, he should be scheduled for an appropriate VA examination. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's hemangioma of the liver (a congenital defect) was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability. If so, please identify the additional disability. The individual designated to provide this additional comment must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. To facilitate providing this additional comment, it is imperative the designated examiner review the claims file, to include this Remand, for relevant medical and other history. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs