Citation Nr: 1340496 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-44 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for residuals of neck cancer. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to July 1981. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2010 rating decision of the VA Regional Office (RO) in Waco, Texas that denied entitlement to service connection for bilateral sensorineural hearing loss and neck cancer. In June 2013, the Board remanded the case for further development. By rating action dated in September 2013, service connection for bilateral hearing loss was granted. This is the full benefit of this matter sought on appeal and it is no longer for appellate consideration. Following review of the record, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. This appeal was processed using a digital VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND When this case was remanded in June 2013, it was directed that the Veteran be scheduled for a VA medical examination to determine nature and etiology of his neck cancer. The record reflects, however, the Veteran was not scheduled for an examination. Instead, the case was reviewed by a Texas based physician who offered an incomplete opinion based on a records review only. In an attempt to cure that error an AMC Medical Officer, who is not a physician, but rather a podiatrist, provided a medical report and opinion in September 2013 based solely on a review of the record. Once again no examination was conducted. A podiatrist is not licensed to treat cancers of the neck. As such, her opinion is not competent, Black v. Brown, 10 Vet. App. 279, 284 (1997), and as such, the examination report is inadequate. Therefore, further development of the record is required prior to disposition of the issue on appeal. It is well established that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). This has not been done in this case. As such, the Veteran must be examined by a VA medical doctor and this should be noted on the examination report. Historically, the appellant served on active duty from August 1960 to July 1981, including service in the Republic of Vietnam. Hence, he is presumed as a matter of law to have been exposed to herbicides in-service. The relevant diseases which are deemed to be associated with herbicide exposure include respiratory cancers (cancer of the lung, bronchus, larynx, or trachea.) The Secretary of Veterans Affairs, however, has determined that a positive association does not exist between herbicide exposure and pharyngeal cancers. The Veteran seeks entitlement to service connection for squamous cell cancer of the neck that he contends is related to Agent Orange exposure during his tour of duty in Vietnam. The record reflects that in March 2000, the Veteran underwent a deep biopsy for a hard knot in the right digastric notch and was found to have extensive metastatic, poorly differentiated squamous cell carcinoma of the neck with an unknown primary. The neck mass was excised later in March 2000 and no primary site of the cancerous lesion could be identified. For treatment purposes, the appellant's oncologist stated that the cancer would be presumed to have a pharyngeal origin, and aggressive radiation and chemotherapy were implemented. Upon completion of treatment, the diagnosis was TX, N2B squamous cell carcinoma of the head and neck region of unknown primary. The primary cancer site remains unclear. This is a crucial consideration in the outcome of the Veteran's claim. Therefore, a medical opinion is needed to determine whether it is at least as likely as not that a respiratory cancer may be considered the primary for the Veteran's squamous cell carcinoma of the neck for service connection to be presumed under existing regulations. The law does permit a Veteran to establish service connection for neck cancer due to in-service herbicide exposure based on direct causation irrespective of any presumptive disease considerations. As such, the medical opinion must also address this theory of entitlement. Accordingly, the case is REMANDED for the following actions: [Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.] 1. The Veteran must be examined by a VA oncologist to determine the nature and etiology of his neck cancer. A copy of this remand and access to Virtual VA and VBMS must be provided to the oncologist for review in connection with the examination. After reviewing the digitized VA clinical record, the oncologist must respond to the following questions: 1) Is the Veteran's squamous cell carcinoma of the neck a result of a primary cancer of the lung, bronchus, larynx or trachea? 2) Is it at least as likely as not that the primary site of the neck cancer is respiratory in nature, to include cancer of the lung, bronchus, larynx, or trachea? Why or not? 3) Is it at least as likely as not that neck cancer is related to service on any other basis or incident therein, including presumed exposure to Agent Orange/herbicides? A fully reasoned and through explanation must accompany the opinions provided. 2. The Veteran must be given adequate notice of the examination, to include advising him of the consequences of failure to report under 38 C.F.R. § 3.655 (2013). 3. The RO must ensure that the medical report requested above complies with this remand, especially with respect to the instructions to provide a competent and comprehensive medical opinion. If the report is insufficient, or if a requested action is not taken or is deficient in any manner, it must be returned to the examiner for correction. Stegall. 4. After taking any further development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the benefit is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the record 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). _________________________________________________ DEREK R. BROWN 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).