Citation Nr: 1327056 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 12-09 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for squamas cell carcinoma of the neck, to include as due to exposure to herbicides. ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran Served on active duty from September 1966 to September 1969, including service in Vietnam This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in August 2011, a statement of the case was issued in February 2012, and a substantive appeal was received in April 2012. At his request, the Veteran was scheduled for a Board hearing in January 2013, but failed to report. 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 A. VA Examination The Veteran appears to be advancing several arguments for service connection. He has on occasion referred to his cancer as lymphoma and/or soft tissue sarcoma. At least one medical record in the files refers to a history of lymphoma. The Veteran may also be contending that his cancer is a respiratory cancer (lung, bronchus, larynx, or trachea). These disorders are presumptive disorders under 38 C.F.R. § 3.309(e). It appears from the record that the primary site of the cancer is unknown. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), an examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, the Veteran's private treatment records demonstrate a current diagnosis of squamas cell carcinoma of the neck, satisfying the first requirement of McLendon. Id. Moreover, his presumptive exposure to herbicides and combat in Vietnam fulfills the second and third McLendon requirements. The Veteran has not been afforded a VA examination to date, and private treatment records contain no opinions as to the nature and etiology of his claimed disability. Accordingly, the Board finds that there is insufficient competent medical evidence on file for VA to make a decision on the claim, and the Veteran must be scheduled for a VA examination. A. Private Medical Records The Board notes that it appears that additional private medical records may also be missing. The claims file includes extensive private medical records from Dr. Adnan E. Mourany, MD. with referrals to outside specialists as necessary. The Board notes that the records indicate the Veteran was receiving regular follow up appointments to keep track of his condition and monitor any potential recurrence of the cancer. However, the records extend only so far as April 2010. Action to request any subsequent records is necessary to fully assist the Veteran. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran, request copies of relevant private treatment records from Dr. Mourany dated since April 2010. Two attempts should be made to obtain these treatment records, unless a formal finding can be made that a second request would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 2. If any records requested above are unavailable, clearly document and notify the Veteran of any inability to obtain these records pursuant to 38 C.F.R. § 3.159(e). He should also be notified to submit any pertinent VA or private records in his own possession. 3. After completion of the above to the extent possible, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of the Veteran's squamas cell carcinoma. The claims file should be made available to the examiner for review in connection with the examination. a) The examiner should clearly discuss the nature of the Veteran's cancer. If the primary site of the cancer remains unknown, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the cancer can be considered lymphoma, a soft-tissue sarcoma (if so, which type), or a cancer of the lung, bronchus, larynx, or trachea. b) If the Veteran's cancer is not lymphoma, a soft-tissue sarcoma, or a cancer of the lung, bronchus, larynx, or trachea, then the examiner should nevertheless offer an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's carcinoma is causally related to service, to include as due to herbicide exposure. The examiner should offer detailed reasons for all opinions. 4. In the event the Veteran fails to report for the examination, the RO should forward the claims file to an appropriate examiner for review and response to the questions posed in the preceding paragraph number 3. 5. After completion of the above, the RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, 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). 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). _________________________________________________ ALAN S. PEEVY 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).