Citation Nr: 1340576 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-15 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bladder cancer with residuals, to include as a result of exposure to herbicides. 2. Entitlement to service connection for a respiratory disability, to include as a result of exposure to herbicides. 3. Entitlement to service connection for a colon disability, to include as a result of exposure to herbicides. 4. Entitlement to service connection for a gastrointestinal disability, to include as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in October 2010, a statement of the case was issued in May 2011, and a substantive appeal was received in May 2011. The the issues of service connection for diabetes and for nerve tremors were raised in the Veteran's VA Form 9 received in May 2011. It does not appear that these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for stomach, bladder, respiratory, and colon disabilities, including bladder cancer, chronic obstructive pulmonary disease (COPD), stomach ulcers, colonic rupture, gastritis, colostomy, peritonitis, colon resection, bronchitis, and diverticulitis. The Veteran asserts that these disabilities are the result of his active duty service, to include exposure to herbicides. The Veteran served in Vietnam from April 1966 to December 1967. Herbicide exposure is presumed. Service treatment records show that the Veteran sought treatment for chest pain with cough, difficulty breathing, burning with urination, and lower stomach pains. While the February 1968 separation examination denied complaints of stomach, bladder, respiratory, or colon disabilities, an April 1969 post-service Report of Medical History noted that the Veteran had pain in his chest and painful urination. Additionally, the Veteran contends that he was hospitalized for 3 days for stomach pains at Bien Hoa, Vietnam. While service treatment records show complaints of stomach pain, there are not records showing extended hospitalization. As this case is being remanded for further development, the RO should undertake to ascertain if additional service treatment records showing this hospitalization are available. The Board notes that the specific stomach, bladder, respiratory, and colon disabilities that the Veteran alleges are not diseases associated with exposure to herbicide agents as listed in the presumptive service connection provisions of 38 C.F.R. § 3.307, 3.309(e). However, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, the Board notes that the Veteran has not been afforded VA examinations in connection with these claims. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the McLendon criteria are met in this case. Service treatment records show the Veteran presented with complaints associated with his respiratory, gastrointestinal, and urinary systems. Post-service treatment records show the Veteran was diagnosed with COPD, colonic rupture secondary to diverticulitis, diverticulitis, ventral hernia, and malignant bladder. Therefore, examinations are warranted to address the nature, extent and etiology of his bladder, colon, respiratory, and gastrointestinal disabilities. Furthermore, the record reflects that Veteran continues to seek treatment at the VA medical center. The last treatment record contained in the file is dated in August 2013. As such, updated VA treatment records must be secured for the record. Finally, at the April 2012 hearing, the Veteran's representative indicated that further private treatment records would be submitted. He was given a 30 day abeyance period to submit such evidence. No additional private treatment records have been received. Consequently, further development to secure such records is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to request any additional service treatment records documenting hospitalization in Bien Hoa, Vietnam in 1969. 2. The RO should obtain copies of all pertinent outstanding VA treatment records from August 2013 to the present. 3. The RO should contact the Veteran and request he identify the private provider(s) of the treatment testified to at the April 2012 hearing and complete the appropriate authorizations so that VA can obtain the relevant treatment records from the provider(s) identified. The RO should then obtain copies of all treatment records (not already of record) to associate with the claims file. If any records sought are unavailable, the reason for the unavailability must be given (e.g., did not exist/were destroyed). 4. The Veteran should be scheduled for appropriate VA examinations in connection with his claims for service connection for bladder, colon, respiratory, and digestive disabilities. It is imperative that the claims files be made available to the examiner(s) for review in connection with each examination(s). After reviewing the records, and examining the Veteran, the examiner is specifically asked to determine: a. Bladder Cancer i. Does the Veteran currently have bladder cancer, to include any residuals of a malignant bladder? ii. If yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bladder cancer (to include residuals) had its onset during the Veteran's active duty service, or is otherwise etiologically related to the Veteran's active duty service, to include exposure to herbicides? A detailed rationale should be furnished for all opinions provided. b. Colon Disability i. Does the Veteran currently have any diagnosed colon disabilities? ii. If yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's colon disabilities had onset during the Veteran's active duty service, or are otherwise etiologically related to the Veteran's active duty service, to include exposure to herbicides? A detailed rationale should be furnished for all opinions provided. c. Respiratory Disability i. Does the Veteran currently have any diagnosed respiratory disabilities, to include COPD? ii. If yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's respiratory disabilities had onset during the Veteran's active duty service, or are otherwise etiologically related to the Veteran's active duty service, to include exposure to herbicides. A detailed rationale should be furnished for all opinions provided. d. Gastrointestinal Disability i. Does the Veteran currently have any diagnosed gastrointestinal disabilities? ii. If yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's gastrointestinal disabilities had onset during the Veteran's active duty service, or are otherwise etiologically related to the Veteran's active duty service, to include exposure to +-herbicides? A detailed rationale should be furnished for all opinions provided. 5. The RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 6. Thereafter, the RO should review the expanded record and readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ ALAN S. PEEVY 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).