Citation Nr: 1340401 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-10 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for squamous cell carcinoma of the left tonsil, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from October 1962 to October 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, while the Veteran's claim was still pending before the Board, the Board received notice that he died in September 2011. In April 2012, the appellant, in her capacity as the surviving spouse, requested to be substituted as the claimant/appellant for this matter. See 38 U.S.C.A. § 5121A. In October 2013, the request for substitution was granted and the claim was certified to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the appellant in the development of the facts pertinent to her claim. VA and private treatment records show that the Veteran's squamous cell carcinoma was diagnosed in 2009. He served in Vietnam during the Vietnam Era and is presumed to have been exposed to Agent Orange/herbicides therein. An August 2009 entry in the Veteran's VA treatment records suggests the etiology of the Veteran's cancer was likely viral (HPV). In an October 2009 letter, the Veteran's treating surgeon, Dr. Magnuson, states that the Veteran's squamous cell tonsil carcinoma was related to service, and due to his exposure to herbicides in Vietnam. While certain chronic diseases (including respiratory cancers) may be service connected on a presumptive basis as due to Agent Orange exposure, service connection has been denied in this case in part based on a finding that tonsil cancer is not a respiratory cancer. Notwithstanding the presumption provisions, a claimant is not precluded from establishing service connection for a disability as due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The record includes records from Nashville and Birmingham VA Medical Centers (MC's), and a private pathology report from PCA Southeast. However, statements by the Veteran and the appellant indicate there are additional private treatment records outstanding that may contain pertinent information, but have not been sought. In particular, the appellant's September 2010 statement indicates that the Veteran saw a Dr. Hunter for a throat and tonsil biopsy (Dr. Hunter is the referring physician noted in the pathology report), that the Veteran was examined by Dr. Duncan, and that the Veteran sought alternative cancer treatments from Drs. Howenstein, Pope, and Cowan. Records from these providers are not included in the record. Accordingly, the case is REMANDED for the following: 1. The RO should ask the appellant to identify the providers of all evaluations and treatment the Veteran received for his squamous cell carcinoma of the tonsil (records of which are not associated with the record on appeal), including Drs. Hunter, Duncan, Howenstein, Pope, and Cowen, and provide releases for VA to secure complete clinical records of such evaluations and/or treatment. The RO should secure complete clinical records of evaluations and treatment from the providers identified. If any records are unavailable, the reason must be noted in the record. 2. After the development sought is completed, the RO should forward the record to an oncologist for review and advisory medical opinion. Based on review of the record, the examiner should provide opinions that respond to the following: (a) Is the Veteran's squamous cell tonsil carcinoma a respiratory cancer? (b) If the Veteran's tonsil cancer is not a respiratory cancer, is it as least as likely as not (50% or better probability) that it was related to his service, to include as due to exposure to herbicides therein. If not, please identify the etiological factor considered more likely. The examiner must fully explain the rationale for all opinions, citing to supporting clinical data/lay statements, as deemed appropriate. 3. The RO should then review the record and re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the appellant and her agent opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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).