Citation Nr: 1323964 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-10 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for cancer of the neck, to include cancer of the larynx. 2. Entitlement to service connection for a vascular disability, to include transient ischemic attacks (TIAs) and stroke, to include as secondary to cancer of the neck. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to August 1970, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In his February 2008 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO, but in a written statement received in October 2011 withdrew his request for a hearing. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA treatment records dated in 2007 reflect that the Veteran reported a history of laryngeal cancer and stroke, and 1993 and 2000 private treatment records indicate that the Veteran was treated for squamous cell carcinoma of the right neck, which included resection and radiation therapy. In August 2007, a VA examining physician gave a diagnosis of laryngeal cancer, status post resection, with residual shortness of breath. However, the examiner did not have access to the Veteran's claims file when making this diagnosis. In February 2013, the Board requested an opinion from a Veterans Health Administration (VHA) ear, throat, and nose specialist as to whether the Veteran had had laryngeal cancer, squamous cell carcinoma of the neck, or any other cancer, whether any such cancer was medically related to the Veteran's in-service exposure to Agent Orange or to service in any other way, and whether a vascular disability, including TIAs, was caused or aggravated by such cancer or its treatment. The Board received a response from a VHA otolaryngologist, dated in February 2013, stating that, as there was only indirect reference to the Veteran's cancer of the larynx and no direct documentation of treatment of such cancer in the claims file, he was not able to address the Board's questions. The answer to this question is crucial to resolution of the case since respiratory cancers such as cancer of the larynx are presumptively deemed related to Agent Orange exposure, while squamous cell carcinoma is not. In a May 2013 Informal Hearing Presentation, the Veteran's representative requested that the case be remanded for VA to specifically ask the Veteran to provide the treatment records for his laryngeal cancer. Thus, the case should be remanded for the Veteran to identify and authorize VA to obtain such records of treatment. Also, a medical opinion should be obtained to determine what type of cancer the Veteran has been treated for, whether any such cancer is medically related to service, and whether a vascular disability, including TIAs, was caused or aggravated by such cancer or its treatment. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain records of the initial diagnosis of and treatment for neck/laryngeal cancer or any other form of cancer in the early 1990s, including any records of surgery for such cancer. 2. If and only if records are obtained pursuant to the above, then forward the Veteran's claims file to an appropriate VA examiner for the examiner to determine the etiology of any cancer of the neck, to include cancer of the larynx (if shown), and any vascular disorder, to include TIAs and stroke. Following a review of the claims file, the examiner is requested to answer the following questions, providing thorough explanations for each answer and opinion given: 1) Has the Veteran had laryngeal cancer, squamous cell carcinoma of the neck, or any other airway malignancy below the glottis or respiratory cancer? In other words, what type of cancer has the Veteran had and received treatment for? 2) If the Veteran has had cancer other than laryngeal cancer, is it is at least as likely as not (i.e. a 50 percent probability or more) that any such cancer is medically related to the Veteran's in-service exposure to Agent Orange, or to service in any other way? 3) If the Veteran had laryngeal cancer, or if the answer to question 2 is yes, is it at least as likely as not (i.e. a 50 percent probability or more) that a vascular disorder, including TIAs or stroke, was caused or aggravated by (i.e., permanently increased in severity beyond the natural progression as a result of) such cancer or the treatment for such cancer? If the requested opinions cannot be provided without an examination of the Veteran, schedule the Veteran for a VA examination with an appropriate examiner to provide the requested opinions and information. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).