Citation Nr: 1332858 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-16 527A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for gastric cancer, status post partial gastrectomy, to include as due to exposure to herbicides in Vietnam. 2. Entitlement to service connection for atrial fibrillation, to include as secondary to diabetes mellitus type II. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty in the Navy from January 1970 to December 1973 and in the Army from March 1975 to December 1978 to February 1982. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (the RO) in St. Louis, Missouri. In February 2010, and again in June 2012, the appeal was decided in part and remanded in part to the RO via the Appeals Management Center (AMC), in Washington, DC. The issues were again remanded in April 2013, and now return again before the Board. This appeal has been processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND These issues were most recently remanded in April 2013 for further development, specifically, for clarification opinions pertaining to the Veteran's November 2012 cardiac examination, and his December 2012 examination for gastric cancer residuals. The remand requested that the claims be returned to the examiners who conducted those examinations, for those opinions, and as well requested that rationales be provided for any opinions offered. An opinion statement as to both these issues, dated August 2013, from a VA health care professional, is of record. The Board is unclear as to whether the examiners from the November and December 2012 prior examinations were unavailable, or whether the RO simply made no effort to contact those examiners; the claims file contains no such notation. What is clear is that the opinions were offered by a medical health professional, not a physician, and the Board does have reservations as to whether that medical health professional has the requisite skill and expertise to answer such diverse questions about two very different medical issues. Most importantly, however, the Board clearly asked that, for any opinion offered, a clear rationale be provided. In reviewing the August 2013 opinion, it is clear that while the questions were answered, a rationale for most of those opinions, particularly the responses to the inquiries pertaining to the etiological of the Veteran's gastric cancer, was not offered. A Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As prior remand orders were not complied with, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Id. In this case, the Board finds that, as the prior examiners may not be available, these claims must be sent back again for full VA examinations which address the questions asked in the prior remand. The Board regrets that another remand is required in this case; however, it is necessary to ensure that the Veteran receives all consideration due him under the law. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names and addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who treated him for atrial fibrillation and gastric cancer that have not yet been associated with the claims file. After the Veteran has signed the appropriate releases, all outstanding treatment records should be obtained and associated with the claims folders. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any atrial fibrillation present during the pendency of the claim. The claims folder must be made available to and be reviewed by the examiner, and any indicated studies should be performed. Based upon the examination results and the review of the claims folders, the examiner should clearly identify whether there is a disability manifested by atrial fibrillation or whether there was one manifested at any time during the pendency of this claim. Then, with respect to any diagnosed cardiac disability, the physician should offer an opinion as to whether there is a 50 percent or better probability that the disability had its onset in service or is otherwise related to conceded herbicide exposure in service. The examiner should state whether or not there is ischemic heart disease. The examiner should comment on the findings in the prior November 2012 VA examination, in offering any opinions. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. A rationale for all opinions expressed must be provided. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any residuals of gastric cancer present during the pendency of the claim. The claims folder must be made available to and be reviewed by the examiner, and any indicated studies should be performed. Based upon the examination results and the review of the claims folders, the examiner should clearly identify all current residuals of gastric cancer present during the pendency of the claim. Then, with respect to each such diagnosed disability, the physician MUST offer an opinion as to whether there is a 50 percent or better probability that the disability: (a) had its onset in service; (b) is etiologically related to diabetes mellitus; or (c) is aggravated beyond the natural progression of the disease by the Veteran's diabetes mellitus, Type II. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The rationale for all opinions expressed must be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted, including further examinations or opinions if deemed necessary. 5. Then, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ DAVID WIGHT 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).