Citation Nr: 1327261 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 13-04 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for cancer of the left eye, including as a result of exposure to herbicides. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for posttraumatic stress disorder (PTSD). 3. Whether new and material evidence has been submitted to reopen the claim for service connection for depression also claimed as bipolar disorder. 4. Whether new and material evidence has been submitted to reopen the claim for service connection for anxiety. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active military service from July 1964 to July 1966. The Veteran served in Vietnam from August 1965 to July 1966. The Veteran died in March 2011. The Veteran's surviving spouse submitted a timely request for substitution of claimant upon the death of claimant. The Veteran's surviving spouse has been properly substituted as the appellant in this case. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the RO issued the appellant a supplemental statement of the case (SSOC) denying 15 separate issues. In December 2012, the appellant submitted a VA Form 9 in which she indicated that she only wished to appeal the four issues listed on the cover page of this decision. Consequently the other 11 issues listed on the November 2012 SSOC are not currently in appellate status. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the appellant's claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 March 2005 computer printout reflects that the Veteran was awarded Social Security Administration (SSA) disability benefits effective in July 2000. The records upon which the SSA disability award was based are not in the claims file and have not been requested. The United States Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). The appellant's claims must be remanded in order that the Veteran's SSA records may be obtained and considered in deciding the claims. With regard to the eye cancer claim, on November 15, 2007, the Veteran reported to a private ophthalmologist that he had developed left eye flashes and floaters starting about two weeks previously. The Veteran was found to have a choroidal melanoma of the left eye. In January 2008, the Veteran's left eye was removed. In March 2011, the Veteran died of metastatic ocular melanoma. The Veteran was a military policeman and he reported that he guarded General Westmorland's headquarters. He stated that he stood guard on the top of the headquarters about six hours a day, in the hottest part of the day without sunglasses. The Veteran asserted that his left eye cancer, a form of melanoma, was caused by his exposure to solar radiation in service. He also asserted that his left eye cancer was caused by his exposure to Agent Orange herbicide during his Vietnam service. In November 2009, the Veteran submitted a statement from his VA treating physician, who opined that the Veteran's melanoma of the eye was due to exposure to Agent Orange and due to exposure to solar radiation while serving in Vietnam. In a letter dated March 31, 2011, the same VA physician stated that the Institute of Medicine Agent Orange Study showed that Vietnam veterans were more likely to have melanoma. These opinions are brief and it is unclear on what basis the conclusions were drawn. Therefore, the Board finds that an opinion by a cancer specialist should be obtained in order to fairly decide this claim. 38 C.F.R. § 3.159(c)(4). In November 2009, the Veteran reported that he underwent an Agent Orange Protocol examination at the VAMC Salisbury in October 2009. He requested that the report be obtained. A review of the record reveals that the October 2009 Agent Orange Protocol examination report is not of record and there is no indication that it has been requested. This report should be obtained and considered. 38 C.F.R. § 3.159(c)(2). 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) (2012). Expedited handling is requested.) 1. Request, directly from the SSA, complete copies of all determinations on claims for disability benefits from that agency regarding the Veteran, together with the medical records that served as the basis for any determinations. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the appellant and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the appellant that she is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 2. Request a copy of the Veteran's October 2009 report of Agent Orange Protocol examination, performed at the VAMC Salisbury, North Carolina. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the appellant and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the appellant that she is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 3. When the above actions have been completed, forward the appellant's claims files to an ophthalmological oncologist for review. The specialist should review the evidence in the claims file and provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran developed cancer of the left eye due to his military service, including due to his presumed exposure to Agent Orange and due to his exposure to solar radiation during service. The opinion should include a discussion of the Veteran's service treatment records and a discussion of the March 31, 2011 opinion by the Veteran's VA treating physician that the Veteran's melanoma of the eye was caused by exposure to Agent Orange and by exposure to solar radiation during service. The specialist is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The specialist must provide the underlying reasons for all opinions provided. 4. When the above actions have been completed, readjudicate the issues on appeal. If the appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. 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). (CONTINUED ON NEXT PAGE.) 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). _________________________________________________ BETHANY L. BUCK 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).