Citation Nr: 1336312	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  12-19 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for residuals of esophageal cancer, status post surgery, including fatigue and memory loss, as a result of exposure to herbicides. 


REPRESENTATION

Veteran represented by:	Jeffrey E. Marion, attorney at law


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel





INTRODUCTION

The Veteran served on active duty from July 1964 to October 1969.  His service personnel records indicate he served in Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which was a reconsideration of an October 2010 decision after the Veteran submitted private treatment records.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

The Veteran's claims file contains an August 2007 letter detailing his award of benefits from the Social Security Administration (SSA).  The included documents do not indicate which disability he was claiming for, but the date claimed coincides with the onset of his esophageal cancer in 2002.  VA has a duty to attempt to obtain SSA records in this circumstance, when it has notice of their existence.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  Thus, on remand the RO must obtain all of the Veteran's records from SSA and associate them with the claims file. 

On remand, the Veteran should also be afforded an appropriate VA examination, as set forth below, and any updated VA treatment records should be obtained.

Accordingly, the case is REMANDED for the following action:

1. Request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s).  If these records are not available, a negative reply is required. 

2. Make arrangement to obtain the Veteran's complete VA treatment records, dated since May 2002.

3.  Thereafter, schedule the Veteran for an appropriate VA  examination.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

The examiner should provide an opinion on the following:

Is it at least as likely as not (50 percent or greater probability) that the Veteran's esophageal cancer (any any residuals thereof) had its clinical onset during active service or is related to any in-service disease, event, or injury, to include presumed exposure to herbicides?

A rationale should be provided for any opinion or conclusion expressed.  

4.  Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If the examination report does not include adequate responses to the specific opinion requested, it must be returned to the providing examiner for corrective action.

 5.  Finally, readjudicate the claim on appeal.  If the claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration.

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).



_________________________________________________
P.M. DILORENZO
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).