Citation Nr: 1337452 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-28 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1970 and from April 1970 to July 1975. He served in Vietnam and died in July 2007. The appellant claims as his surviving spouse. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a July 2008 rating decision of the VA Regional Office (RO) in St. Petersburg, Florida. Following review of the record, 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 Veteran's death certificate reflects that he died in July 2007 and that the immediate cause of death was peritonitis due to or as a consequence of postoperative anastomotic leak due to or as a consequence of metastatic squamous cell cancer on the base of the tongue. The appellant asserts that the Veteran's squamous cell tongue cancer developed as the result of exposure to herbicides/Agent Orange from a tour of duty in Vietnam. The record reflects that the Veteran served in Vietnam. As such, exposure to herbicides/Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West Supp. 2013). Review of the record reveals that the Veteran died while undergoing treatment at the Cancer Treatment Center of America, in Philadelphia, Pennsylvania. Records of the terminal hospitalization have not been obtained. The record also contains an opinion of Dr. Deems, set out below. Reportedly, he, or people in his facility, had treated the Veteran since 2003. All records of this treatment should be requested. They may contain information as to the type of cancer found that would be probative as to the onset of the cancer. Review of the record discloses that the Veteran was afforded a VA examination in April 2007 whereupon the examiner was requested to provide an opinion as to whether squamous cell carcinoma of the tongue with adrenal metastases was related to herbicide exposure. Following examination, the examiner opined that "With the guidelines and information available, squamous cell carcinoma of the tongue is not considered a presumptive condition from Agent Orange exposure." As such, it is clear that the VA examiner's response was predicated upon the limited scope of applicable regulations pertaining to Agent Orange-related presumptions. The Board points out, however, that while squamous cell carcinoma of the tongue is not among the conditions that are presumptively service connected because of exposure to herbicides, including Agent Orange, it is well established that a claimant might establish direct service connection when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1044. Thus, VA must not only determine whether the veteran had a disability which is recognized by VA as being etiologically related to exposure to Agent Orange, but must also ascertain whether the disability was otherwise the result of active service and exposure to Agent Orange therein. Therefore, the issue for consideration is whether there is sufficient evidence linking the disability to exposure to Agent Orange during the period of service. See 38 U.S.C.A. §§ 1113, 1116 (West 2002 & Supp. 2013). In this regard, the appellant has submitted a medical report from the Veteran's private physician, D. Deems, M.D., Ph.D., F.A.C.S., a specialist in ear, nose and throat disorders, who stated in September 2007 that the oral cavity and oropharynx were clearly the entrance to the respiratory system and were similar cellularly to the larynx and the respiratory system. Dr. Deems opined that "It is quite clear that Agent Orange would be the most likely 'smoking gun' as the carcinogenic risk for [the Veteran]." As Dr. Deems clearly links the Veteran's tongue cancer to Agent Orange exposure in service, a VA examination of the record is warranted for a corroborating opinion. Under the circumstances, the case will be remanded for a specialist examination of the record, to include a medical opinion as to whether squamous cell carcinoma of the tongue is otherwise the result of exposure to Agent Orange. See Combee, supra, citing 38 U.S.C.A. §§ 1113(b), 1116; 38 C.F.R. § 3.303 (2013). Accordingly, the case is REMANDED for the following actions: 1. Contact the appellant to obtain appropriate release forms to obtain medical records of all treatment rendered to the Veteran. Specifically, records should be requested from Dr. Deems, and from the Cancer Treatment Center of America in Philadelphia. All records obtained should be associated with the record. To the extent records are sought but not obtained, the claims file should contain documentation of all attempts made. 2. Thereafter, but whether records are received or not, refer the case to a VA physician who is specialist in Agent Orange-related diseases or to a VA oncologist for review of the record and a medical opinion. A comprehensive clinical history should be recited, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (a 50 percent probability or better) the Veteran's squamous cell carcinoma of the tongue may be found to have been etiologically related to Agent Orange/herbicide exposure in Vietnam, or whether it was more likely of post service onset and unrelated to service and exposure to Agent Orange/herbicides therein. The examiner should provide thorough and detailed rationale for the opinion provided and the report must be returned in a narrative format. The opinion should be reconciled with that of Dr. Deems, to the extent possible. 3. The RO should ensure that the medical report requested above complies with this remand. If a requested action is not taken or is deficient, it should be returned for correction. 4. After taking any further development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the benefit is not granted, the appellant and her representative should be provided a supplemental statement of the case 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. 2013). _________________________________________________ MICHAEL D. LYON 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).