Citation Nr: 1333377 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-27 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the tongue, including as secondary to exposure to herbicide. 3. Entitlement to service connection for a bilateral wrist disability, claimed as arthritis. 3. Entitlement to an initial (compensable) rating for pes planus from April 5, 2006, to June 14, 2013, and in excess of 30 percent from June 15, 2013. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to January 1973 and from November 1983 to August 1987 with unverified intervening active service and service in the Air Force reserve. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Columbia, South Carolina, Regional Office (RO), which originally had jurisdiction over the appeal, and a May 2006 rating decision of the RO in St. Petersburg, Florida, to which jurisdiction over this case was transferred and which forwarded the appeal to the Board. The procedural history of the case was reported in detail in the Board's January 2011 decision and will not be repeated here other than to note that a July 2013 rating decision granted service connection for bilateral hip osteoarthritis and degenerative disease of the neck, as well as increased to 30 percent, effective June 15, 2013, the noncompensable evaluation assigned to bilateral pes planus. Each of the current claims on appeal was remanded for additional evidentiary development in that Board decision. The case has now been returned to the Board for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issue of entitlement to service connection for squamous cell carcinoma of the tongue, including as secondary to exposure to herbicide, is addressed in the REMAND portion of the decision below. That issue is REMANDED to the RO. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran's current bilateral wrist disability, diagnosed as osteopenia, was not demonstrated in service or until many years later, and is not otherwise related to active service. 2. For the time period prior to June 15, 2013, bilateral pes planus was manifested by the use of orthotics. 3. For the time period from June 15, 2013, bilateral pes planus has been manifested by pain on use and accentuated pain with characteristic callosities, pronation, and the need to wear arch supports. CONCLUSIONS OF LAW 1. A bilateral wrist disability was not incurred in or aggravated by active service, and bilateral wrist arthritis may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5013, 5103A, 5107A, 5107(b) West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), 3.310 (2012). 2. For the time from April 5, 2006, to June 14, 2013, the criteria for an initial (compensable) evaluation for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5276 (2012). 3. For the time from June 15, 2013, the criteria for an initial evaluation in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 38 C.F.R. §§ 3.101, 4.71a, DC 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in August 2006 and June 2009) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his attorney representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Veteran was afforded VA examinations on numerous occasions, to include in May 2010 and June 2013 (wrists and feet). The examinations were thorough in nature and adequate for the purposes of deciding the current claims. The reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); and Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where there is a chronic disease (as identified in 38 C.F.R. § 3.309(a)) shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis to a degree of 10 percent or more within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Entitlement to service connection for arthritis of the wrists. It is contended that the Veteran has a bilateral wrist disorder, claimed as arthritis, that is of service origin. As pointed out by his attorney representative, the Veteran gave a history of painful joints at time of separation in 1987. Moreover, he is already service-connected for osteoarthritis of numerous joints, to include the hips, hands, neck, and lumbar spine. The STRs are negative for report of, treatment for, or diagnosis of a bilateral wrist disability. As claimed by his attorney representative, the Veteran did give a history of painful joints at time of separation in 1987. No disability pertinent to the wrists was recorded. Post service records include X-rays of the wrist in December 1987 which were negative. Subsequently dated records include diagnoses of mild degenerative joint disease (DJD) in numerous joints to include the hands, but not the wrists. For example, see VA April 2006 report. Private records dated in May 2009 reflect a diagnosis of tendonitis of the wrists. When examined by VA in May 2010, the Veteran said that his wrist pain began during service. X-rays showed no degenerative findings. The only diagnosis was mild age appropriate osteopenia of the wrists. In a September 2012 report, a private physician, G.K., M.D., opined that the Veteran's arthritis was of service origin. He noted that the Veteran gave a history of joint problems at time of separation. When examined by VA in June 2013, it was noted that the Veteran had been diagnosed with osteopenia of the wrists. The examiner opined that this condition was less likely as not incurred in or caused by active service. For rationale, it was noted that there was no evidence the Veteran injured his wrists during service or that he was treated for wrist pain. Moreover, X-rays in 2010 showed only osteopenia consistent with age. The Veteran currently has a diagnosis of osteopenia of the wrists. Although his claim was filed as entitlement to service connection for arthritis of the wrists, that disability has never been diagnosed. As the evidence does not show that the Veteran has ever received a competent medical diagnosis of arthritis of the wrists, service connection cannot be granted. In fact, X-rays of record dated in 1987 and 2010 show that no degenerative changes are present. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of arthritis of the wrists, the claim must be denied. Moreover, service connection is denied for osteopenia of the wrists. Initially, it is noted that this condition is defined as follows: a generalized reduction in bone mass that is less severe than that resulting from osteoporosis, caused by the resorption of bone at a rate that exceeds bone synthesis. The American Heritage(r) Dictionary of the English Language, Fourth Edition copyright (c)2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. In this case, osteopenia was not shown during service or until many years thereafter. A VA examiner in June 2013 opined that this condition was not of service origin. For rationale, it was noted that there was no injury of the wrists during service, and post service X-rays showed only age appropriate osteopenia. Thus, while there is evidence of a bilateral wrist condition, first diagnosed many years after service, there is no probative evidence that shows that this condition is of service origin. The Board has considered the fact that the Veteran had joint complaints at time of service separation in 1987. However, X-ray conducted shortly thereafter showed no wrist condition. Moreover, only age appropriate osteopenia was noted at the time of additional X-ray in 2010. Clearly, this condition did not manifest during service or until many years thereafter. The Board has considered the private physician's September 2012 medical opinion that the Veteran's arthritis is of service origin. The Board points out that arthritis for every joint (e.g., hips, hands, and neck) that was first noted in service or within the first presumptive year, service connection is already in effect. As noted above, as arthritis of the wrist is not currently diagnosed, service connection cannot be granted. And, as opined by a VA medical examiner in 2013, current osteopenia is not of service origin, but is age related. The Board finds that the 2013 VA examiner's report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's osteopenia of the wrists. The opinion is based on a review of the Veteran's complete medical records, to include multiple X-rays of the wrists and examination of the veteran. Thus, it takes into account the medical evidence in favor and against the Veteran's claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. Entitlement to an initial (compensable) rating for pes planus from April 5, 2006, to June 14, 2013, and in excess of 30 percent from June 15, 2013. For the time period prior to June 15, 2013, the Veteran was assigned a noncompensable rating; for the time period from June 15, 2013, he is assigned a 30 percent evaluation for bilateral pes planus. Both evaluations were made pursuant to 38 C.F.R. § 4.71a, DC 5276 (2012). Acquired pes planus (flatfoot), bilateral or unilateral, will be rated as noncompensable when mild, with symptoms relieved by built-up shoe or arch support. This disability will be rated as 10 percent disabling when moderate, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet; as 30 percent disabling when bilateral and severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; and as 50 percent disabling when bilateral and pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276 (2012). The STRs reflect a diagnosis of flat feet. At the time of the service separation exam in June 1987, the condition was noted to be mild and relieved by arch supports. Post service records also show this condition. Thus, service connection was granted for bilateral pes planus in a May 2006 rating decision. A noncompensable rating was assigned, effective April 5, 2006. Subsequently dated records are essentially negative for mention or treatment of pes planus. It was noted, however, in a VA record in 2007 that the Veteran continued to have foot pain. A VA record in March 2011 also showed that he continued to suffer from pes planus and had a callous under the left second metatarsal head. When examined by VA on June 15, 2013, the examiner noted that the Veteran had bilateral pes planus and that this condition was manifested by pain on use, accentuated pain with characteristic callosities, and pronation. The Veteran used arch supports. For the time period prior to June 15, 2013 After review of the evidence of record, the Board finds that the evidence does not support the assignment of an initial (compensable) evaluation for bilateral pes planus for the time period prior to June 15, 2013. It is noted that objective findings related to pes planus prior to that date were the need to use arch supports for relief, and the presence of a callous under the left 2nd metatarsal head. As noted in DC 5276, mild symptoms resulting from pes planus that are relieved by built-up shoe or arch support warrant a noncompensable rating. It is concluded by the Board that the use of arch supports, and the presence of a callous under the left 2nd metatarsal head, are symptoms that are best described as mild. There was no report of weight-bearing line over or medial to the great toe or inward bowing of the tendo achillis. Therefore, an initial (compensable) evaluation for bilateral pes planus for the time period prior to June 15, 2013, is denied. For the time period from June 15, 2013 After a review of the evidence of record, the Boards that the evidence does not support the assignment of a rating in excess of 30 percent from June 15, 2013. The RO appropriate assigned a 30 percent rating based on objective clinical medical findings that included pain on use, accentuated pain with characteristic callosities, pronation, and the use of arch supports. For an increased rating there must be marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Such symptoms are simply not shown. Accordingly, an initial rating in excess of 30 percent from June 15, 2013, is not warranted. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's bilateral pes planus are fully contemplated by the applicable rating criteria. The criteria of DC 5276, providing for ratings based on whether the symptoms are moderate, moderately severe, or severe, are broad enough to contemplate each of the Veteran's foot symptoms as discussed above. Those symptoms provided the basis for the increased 30 percent rating that was granted upon rating decision in July 2013. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for consideration of an extraschedular evaluation for bilateral pes planus is not warranted. 38 C.F.R. § 3.321(b)(1) (2012). ORDER Entitlement to service connection for a bilateral wrist disability, claimed as arthritis, is denied. Entitlement to an initial (compensable) rating for pes planus from April 5, 2006, to June 14, 2013, and in excess of 30 percent from June 15, 2013, is denied. REMAND Entitlement to service connection for squamous cell carcinoma of the tongue, including as secondary to exposure to herbicide. Although the Board regrets the additional delay as to this claim, a remand is necessary as to this service connection claim to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Historical Background Following review of the Veteran's service personnel records, it is evident that the Veteran served in the Republic of Vietnam. Thus, exposure to herbicides is conceded. See 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). STRs are silent for any symptoms, diagnoses, or treatment for any oral or throat disorders. There is no evidence that the Veteran's military duties included handling or spraying of herbicide. In an October 2004 letter, a VA physician noted that the Veteran had participated in a VA examination and laboratory testing for possible health problems related to exposure to herbicide. The physician stated that the examination and tests showed a history of squamous cell carcinoma of the tongue, epiglottis, and lymph nodes. The clinical results of the examination are not in the claims file. However, four days later, a VA physician noted that the Veteran had been diagnosed with squamous cell carcinoma of the tongue. The Veteran underwent oral surgery and concurrent chemical and radiation therapy. The file contains very limited records of VA outpatient follow up care. In an excerpt of an examination report dated in April 2005 and submitted by the Veteran, a VA examiner stated, "I do not know why 'cancer of the larynx, trachea, bronchus, and lung' are considered sc related cancers linked to agent orange exposure are service connected but that vets [sic] oral cancer of the tongue is not - he smoked for only about 2 years decades ago." In August 2005, a VA primary care physician noted that the Veteran had no current complaints and that he was being followed in the oncology clinic. In May 2006, a VA physician noted that the Veteran had no complaints. He noted no nasopharynx or oropharynx masses or lesions and diffuse radiation changes in the hypopharynx. He stated that his examination showed no evidence of disease. In a July 2007 substantive appeal, the Veteran contended that if service connection is warranted for cancers related to herbicide exposure in areas past the mouth, a reasonable person would find that the herbicide agent would cause cancer in the mouth. He contends that service connection is warranted because there is reasonable doubt of the cause of his cancer. Subsequently dated VA records (from 2007 through 2011) primarily mention cancer of the tongue by history only. Additional VA examination was conducted in June 2011 to address the etiology of the Veteran's squamous cell cancer of the tongue. The examiner noted that this condition was not in remission. The examiner noted that the Veteran developed a bleeding sore on his tongue in 2004. A doctor at that time found that he had tongue cancer. Surgery was performed and post surgical treatment included chemotherapy and radiation. The examiner opined that the Veteran's tongue cancer was less likely than not related to his time in service that included Agent Orange exposure. For rationale, he noted that review of the VA criteria for Agent Orange does not include tongue cancer nor squamous cell cancer as a possible complication. The claims file was reviewed by the examiner. In a September 2012 report, a private physician, G.K., M.D., noted that he had reviewed the medical records. He provided an opinion stating that scientifically, it was more likely than not that the Veteran's squamous cell cancer was caused by or related to his inservice exposure to Agent Orange. For rationale, he pointed out that none of the medical records indicated that any of the Veteran's treating physicians diagnosed a cause other than exposure to herbicides for the diagnosis of tongue cancer. He added that the available scientific studies failed to prove an association between herbicide exposure and oral cancer like the Veteran's "beyond a reasonable doubt," but multiple studies had identified an association "at the more likely than not level of certainty." New research cited by VA (Veterans and Agent Orange: Update 2010 (VAO 2010) identified a plausible biological mechanism by which the Veteran's herbicide exposure might have caused his cancer. Specifically, he indicated that the "new evidence indicating that cancer of the tonsils can have a viral HPV [human papillomavirus] etiology underscores a reasonable mechanistic hypothesis for an excess of cancers in Vietnam-era veterans exposed to Agent Orange." In conclusion, he again stated that it was his opinion that scientifically, it was more likely than not that the Veteran's squamous cell cancer of the tongue was caused by or related to his inservice exposure to Agent Orange. The report includes a list of scientific studies which the private physician claimed showed a "more likely than not association between herbicide exposure and oral cancers." Pertinent Laws and Regulations The specific statute pertaining to claimed exposure to herbicides is 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012). For a veteran who has service in Vietnam, such as in the current case, there is a presumption of exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2012). For example, VA currently recognizes that cancers of the lung, bronchus, larynx, or trachea, are associated with exposure to herbicides. See 38 C.F.R. § 3.309(e) (2012). Based on a National Academy of Sciences (NAS) Update report, entered into agreement with the Secretary, and issued in July 2007, the Secretary specifically determined that cancers of the oral cavity (including the lips and tongue) do not warrant a presumption of service connection based on exposure to herbicides. Id. Further, in a Notice published in the Federal Register in August 2012, the Secretary determined that cancers of the oral cavity (including lips and tongue) did not warrant a presumption of service connection based on exposure to herbicides based on an updated report of the NAS. See 38 U.S.C.A. § 1116(b) and (c) (West 2002 & Supp. 2012); 77 Fed. Reg. 47924, 47927 (August 10, 2012). Despite the foregoing presumptive 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). Although the Combee decision pertained to radiation claims, the same rationale applies to claims based on herbicide exposure. See also, McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). Moreover, it is noted that in the private physician's September 2012 opinion, as summarized above, it is argued that there are plausible arguments in current scientific literature, to include the VAO 2010 update, which provide for a favorable determination. Analysis In the remand development below, the Board requests additional opinion as to whether the Veteran's squamous cell cancer of the tongue is of service origin, to include as secondary to exposure to herbicides. The case is REMANDED for the following action: 1. The Veteran should be requested to provide VA with the names and/or facilities that have treated him for the squamous cell carcinoma since September 2012, along with the Veteran's signed consent, so that records can be requested. The Veteran may submit such records himself. All attempts to fulfill this development should be documented in the claims file. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and his representative 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 Veteran that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2012). The Veteran must be given an opportunity to respond. 2. After any outstanding records are received and associated with the claims file, the AMC should then arrange for a VA medical examination by an appropriate medical professional to assess the possible etiology of the Veteran's squamous cell carcinoma of the tongue. The examiner should review the Veteran's claims folder and indicate in the examination report that the claims folder was indeed reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is informed of the following facts: * The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents used in that country. * Squamous cell carcinoma of the tongue was first medically shown in 2004. * Squamous cell carcinoma is not one of the diseases recognized by VA as causally related to exposure to herbicide agents used in Vietnam. However, this does not preclude a veteran from establishing service connection with proof of actual direct causation. * It is argued by a private physician that there are a number of scientific studies that have discovered a "more likely than not association" between herbicide exposure and development of oral cancers. * While the Board has laid out some of the relevant facts, it asks that the examiner review the entire claims file to have a better picture of the Veteran's medical history and to better grasp the arguments presented regarding etiology of tongue cancer, to include whether secondary to herbicide exposure. The examiner is asked to answer the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran's squamous cell carcinoma of the tongue is related to active service, to include as being due to presumed exposure to herbicides? The examiner is asked to provide a detailed response with a complete rationale for all conclusions reached, and consider attaching any studies that support the conclusions reached. The examiner is requested to specifically discuss the private physician's September 2012 report in detail, to include the Veterans and Agent Orange Update 2010 and each of the other numerous scientific studies mentioned, to include any association between the development of HPV and the Veteran's tongue cancer. 3. After the requested examination report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if deficient in any manner. 4. Thereafter, ensure that the above development has been completed in accordance with the remand instructions; and undertake any other development action that is deemed warranted, and readjudicate the claim of entitlement to service connection for squamous cell carcinoma of the tongue. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs