Citation Nr: 1337538 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-24 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for stomach cancer (adenocarcinoma of the stomach), to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from September 1966 to May 1968. His awards and decorations include the Fleet Marine Combat Operation Insignia, among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona In February 2013, the Veteran presented testimony at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's Virtual VA file. 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 Before addressing the merits of the service connection claim for stomach cancer, the Board finds that additional development of the evidence is required. First, the RO/AMC should secure a VA medical opinion to determine whether the Veteran's stomach cancer, (which is not a listed presumptive disease for herbicide purposes), is otherwise directly related to presumed herbicide exposure during military service in Vietnam. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange). The Veteran has denied in-service gastrointestinal symptoms, but he has reported that he has experienced gastrointestinal symptoms since the early 1970s, which was several years after discharge from his service in Vietnam. He has asserted that his chronic gastrointestinal symptoms resulted from his presumed exposure to herbicides in Vietnam, ultimately manifesting in adenocarcinoma of the stomach in 2008. He has conceded that he did not seek treatment for his stomach problems until approximately 2003. Second, the Board notes that the claims file does not contain any VA treatment records dated since March 2010 from the VA Medical Center (VAMC) in Phoenix Arizona or the VA Community Based Outpatient Clinic (CBOC) in Payson, Arizona. At the February 2013 hearing, the Veteran testified that he has received yearly checkups for his stomach at either of these VA facilities subsequent to his October 2008 surgery for stomach cancer. See testimony at pages 9-10. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Therefore, on remand, the RO/AMC should attempt to secure any outstanding VA treatment records dated since March 2010. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding treatment records from the VAMC in Phoenix, Arizona, or VA CBOC in Payson, Arizona, dated since March 2010. (At the February 2013 hearing, the Veteran testified that he has received yearly checkups for his stomach at either of these VA facilities subsequent to his October 2008 surgery for stomach cancer - see testimony at pages 9-10). All attempts to secure these records, and any response received, should be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After completing the above development, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's adenocarcinoma of the stomach. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine whether it is at least as likely as not that the Veteran's adenocarcinoma of the stomach began during service or is related to any incident of service, to include his presumed herbicide/Agent Orange exposure in Vietnam (regardless of the fact that the disorder is not presumed to be associated with herbicide exposure). In making this determination, the examiner should consider the Veteran has denied any in-service gastrointestinal symptoms, but has reported that he has experienced gastrointestinal symptoms since the early 1970s, which was several years after discharge from his service in Vietnam. The Veteran has asserted that his chronic gastrointestinal symptoms resulted from his presumed exposure to herbicides in Vietnam, ultimately manifesting in adenocarcinoma of the stomach in 2008. The Veteran has conceded that he did not seek treatment for his stomach problems until approximately 2003. In making this determination, the examiner should also address the medical treatise references submitted by the Veteran in August 2006, some of which may indicate the possibility of a relationship between exposure to chemical toxins to include Agent Orange and the development of stomach cancer. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the service connection issue should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and any representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran 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). _________________________________________________ J.W. ZISSIMOS 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).