Citation Nr: 1334820 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-23 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for cancer, to include squamous cell carcinoma of the base of the tongue and/or lymphoma, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from March 1965 to February 1969. 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) Togus Regional Office (RO) in Augusta, Maine. Jurisdiction over the case was subsequently returned to the RO in Indianapolis, Indiana. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The Veteran requested a Travel Board hearing in his June 2010 substantive appeal that was later cancelled via a form submitted in September 2011. In his April 2013 informal hearing presentation (IHP), the Veteran renewed his request for a travel board hearing; however, a second IHP submitted in October 2013 indicated that he no longer desired a travel board hearing. The Veteran's hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e) (2013). 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 The Board remands the claim on appeal for additional development. The Veteran asserts that his cancer of the tongue and throat are due to his exposure to herbicides in Vietnam. In support of his claim, the Veteran submitted an August 2009 letter from a private physician indicating the Veteran had a history of cancer of the tongue and cervical lymphatic system with secondary damage to the larynx, and a May 2010 letter from the same private physician indicating that a mass had been located at the very back base of his tongue and palpated deep into the left side of his neck upon clinical examination. The May 2010 letter also noted that a 2002 Clark Memorial Hospital pathology report had indicated that poorly differentiated basaloid squamous cell carcinoma was found in a lesion from the base of the Veteran's tongue, and the Board further notes that the record contains a 1993 Clark Memorial Hospital pathology report that appears to indicate that infiltrating basal cell carcinoma had been found in a lesion from the Veteran's left neck. The record also contains a November 2009 VA treatment record in which the examiner indicated that he suspected that the Veteran's neck cancer was Agent Orange related. The examiner stated that it sounded like the Veteran actually had cancer of the larynx and there were some issues regarding sampling of the base of the tongue versus the larynx. The examiner noted that according to the Veteran the doctor who did the biopsy had died and the Veteran had been stranded as far as being able to get a letter of clarification to support his claim. The Board notes that the Veteran's exposure to herbicides during service has already been established as the Veteran's service personnel record indicate that he served in the Republic of Vietnam. See 38 C.F.R. § 3.307(a) (6) (iii) (2013). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain specified diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include Hodgkin's disease, non-Hodgkin's lymphoma, and respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 C.F.R. § 3.309(e) (2013). However, as carcinoma of the tongue is not listed as a condition for which presumptive service connection due to herbicide exposure is warranted, the Veteran is not entitled to a regulatory presumption of service connection for this disability as a result of in-service herbicide exposure. His claim must still be reviewed to determine if service connection can be established on a direct basis or based on applicable presumptions established for chronic disease under 38 C.F.R. § 3.309(a). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). The record contains opinion letters from Dr. J.B. suggesting that the Veteran's cancer may possibly be attributed to the Veteran's exposure to Agent Orange in the past. Further, the record also contains a VA examiner's treatment note suggesting that the Veteran had cancer of the larynx and that the Veteran's neck cancer was Agent Orange related. However these opinions are not only speculative, they do not provide a sufficient rationale with supporting data. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims held that in disability compensation (service connection) claims, the VA must provide a VA medical examination or obtain a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting 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 the VA to make a decision on the claim. The record on appeal contains medical evidence suggesting that the Veteran's cancer of the tongue and/or neck and throat may be related to herbicide exposure in service, satisfying the low threshold of McLendon. As such, the RO should provide the Veteran with a VA examination and opinion regarding whether the disability at issue was incurred in or caused by, the Veteran's active service, to include exposure to Agent Orange in Vietnam. The RO should also obtain additional relevant VA and private treatment records, including any records from the ear, nose, and throat specialist referred to in the Veteran's June 2010 statement, if such specialist is adequately identified. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records identified by the Veteran, to include from VA and Joseph Beaven, M.D. All attempts to obtain these records should be associated with the claims file. 2. Then, provide the Veteran with a VA examination, by a physician with an appropriate specialty and sufficient expertise, to determine the nature and etiology of the Veteran's cancer to include squamous cell carcinoma of the base of the tongue and/or lymphoma. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The examiner should: a). identify the primary site of the Veteran's cancer, i.e., the tongue, neck, larynx, etc; b). indicate the locations of any metastatic cancer of the head and/or neck; c). state, based on examination results and the record, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's squamous cell carcinoma of the base of the tongue is etiologically related to the Veteran's active service, to include exposure to Agent Orange. If the primary site of the Veteran's cancer is determined by the examiner to be other than the base of the tongue, the examiner should identify that location and state whether it is at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran's active service, to include exposure to Agent Orange. The opinion must consider all pertinent medical history and contain both a detailed description of the disabilities and a complete medical rationale. 3. The RO or AMC should undertake any additional development it deems warranted. 4. Then, the RO or AMC should readjudicate the claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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). (Continued on the 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). _________________________________________________ S. L. Kennedy 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) (2013).