Citation Nr: 1323392 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 13-00 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for metastatic tongue cancer, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Stephen S. Pennington, Attorney at Law ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to November 1968 and from February 1970 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board observes that, in July 2013, the Veteran's attorney submitted additional evidence consisting of a June 2013 statement from the Veteran's treating private physician, Dr. C.W., without a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). However, as his claim is being remanded, the RO will have an opportunity to review the newly submitted document such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board further observes that the Veteran appointed his representative, Stephen S. Pennington, Attorney at Law, in a VA Form 21-22a, Appointment of Individual as Claimant's Representative, that was received by VA in November 2009. Despite a handwritten note across such document indicating that Mr. Pennington's representation had been revoked as of January 4, 2013, there is no statement from the Veteran of record revoking such representation. Moreover, Mr. Pennington has not withdrawn his representation and, as recently as July 2013, he has submitted evidence on the Veteran's behalf. Therefore, the Board will continue to recognize Mr. Pennington as the Veteran's representative. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran asserts that he has metastatic tongue cancer as a result of exposure to herbicides in service. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The National Personnel Records Center (NPRC) has confirmed that the Veteran served in Vietnam from June 1967 to November 1968. If a Veteran is exposed to an herbicide agent during active service, presumptive service connection is warranted for numerous disorders; however, metastatic tongue cancer is not included on such list. 38 C.F.R. § 3.309(e), as amended, 75 Fed. Reg. 53,203 (August 31, 2010). In this regard, VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, there is no dispute that the Veteran has a current diagnosis of metastatic tongue cancer. Further, there is an indication that his metastatic tongue cancer may be directly related to herbicide exposure in service. Specifically, in a June 2009 letter, one of the Veteran's treating oncologists, Dr. J.S. opined that, due to the Veteran's limited smoking history and light use of alcohol, exposure to herbicides in service could not be ruled out as a contributing factor to the cancer. In this regard, the Veteran reported that he was a light smoker as a teen but had not smoked in over 40 years. However, Dr J.S.'s opinion is speculative in nature in that it only indicates that herbicide exposure as the etiology of the Veteran's cancer could not be ruled out. Moreover, he does not offer a complete rationale for his opinion. Additionally, in a June 2009 letter, Dr. C.W., another one of the Veteran's treating oncologists, opined that, during his military career, the Veteran was exposed to Agent Orange, which cannot be excluded a Further, in a June 2013 letter, Dr. C.W. opined that the Veteran's metastatic tongue cancer was likely a result of his exposure to herbicides in service. The oncologist indicated that in reaching this conclusion, she reviewed all of his medical records concerning the metastatic tongue cancer including records from Dr. J.S. in the same practice group. Significantly, however, Dr. C.W. did not provide a basis for her June 2009 or June 2013 opinion. As Dr. J.S. and C.W.'s opinions are inadequate to decide the claim, the Board finds that a remand for a VA examination with an opinion with a complete rationale is necessary to decide the claim. Additionally, while on remand, the Veteran should be given an opportunity to identify all private and VA medical providers who treated him for his tongue cancer from the time of his service discharge to the present. Thereafter, all identified records not already contained with the claims file should be obtained for consideration in his appeal. Finally, as indicated in the Introduction, the Veteran via his attorney submitted a June 2013 opinion from Dr. C.W. that the RO has not yet considered. Therefore, in the readjudication of the Veteran's claim, such opinion should be considered. 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify all private and VA medical providers who treated him for his tongue cancer from the time of his service discharge to the present. After obtaining any necessary authorization forms, obtain all identified records not already contained in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his metastatic tongue cancer. The claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. The examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's metastatic tongue cancer is related to herbicide exposure in service. In offering such opinion, the examiner should consider the June 2009 and June 2013 opinions offered by Drs. J.S. and C.W. In this regard, the examiner should specifically address the risk factors for metastatic tongue cancer, including the significance of the factors noted the June 2009 letter from Dr. J.S. regarding tobacco use and alcohol abuse. The examiner should also address the June 2013 letter from Dr. C.W. indicating that the Veteran's metastatic tongue cancer is likely a result of Agent Orange exposure. Any opinion offered must be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include Dr. C.W.'s June 2013 opinion. If the claims remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).