Citation Nr: 1303322 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 06-28 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for lung cancer, to include as secondary to asbestos exposure, exposure to ionizing radiation, and service-connected hepatitis C. 2. Entitlement to service connection for throat cancer, to include as secondary to exposure to ionizing radiation and service-connected hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from January 1971 to December 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in December 2004 and in February 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2010, the Board remanded the claim for further development. The December 2004 rating decision also denied service connection for hepatitis C, but this benefit was subsequently granted by rating decision in April 2011; a 60 percent disability rating was assigned, effective April 2, 2004. The Veteran has not disagreed with the assigned disability rating or the effective date. Therefore, that matter has been resolved and is not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. 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 Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AMC/RO. In September 2010, the Board remanded the claim in part to schedule the Veteran for a VA examination. The examiner was requested to provide an opinion as to whether it is at least as likely as not that the Veteran's lung cancer was etiologically related to asbestos exposure or other injury or illness incurred during service. The examiner was also requested to provide an opinion as to whether it is at least as likely as not that the Veteran's throat cancer is etiologically related to an injury or illness incurred during service. If the VA examination for the Veteran's hepatitis C revealed that hepatitis C was incurred during service, the examiner was asked to opine as to whether it is at least as likely as not that the Veteran's lung cancer and/or throat cancer was caused or aggravated by the Veteran's hepatitis C. The December 2010 VA examination findings revealed that hepatitis C was related to service. The December 2010 VA examiner opined that there is no evidence to show that hepatitis C is a causative factor of lung cancer, and that there was nothing to suggest that the Veteran's throat cancer is related to hepatitis C. The examiner also opined that it is less likely as not that lung cancer is related to hepatitis C. The June 2011 VA examination addendum opinion reflects that there was no evidence of asbestosis in the lungs. However, the examination findings did not address whether it is at least as likely as not that the Veteran's lung cancer was etiologically related to asbestos exposure or other injury or illness incurred during service, whether it is at least as likely as not that the Veteran's throat cancer is etiologically related to an injury or illness incurred during service, or whether it is at least as likely as not that the Veteran's lung cancer and/or throat cancer was aggravated by the Veteran's hepatitis C. Accordingly, the case is REMANDED for the following actions: 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of his in-service and post-service symptomatology for lung and throat cancer. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. The Veteran should also be afforded a VA examination, with an appropriate examiner, to determine the etiology of the Veteran's throat cancer and lung cancer. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide the following opinions: * Is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's lung cancer is etiologically related to his active duty service, to include exposure to asbestos? * Is it at least as likely as not that the Veteran's throat cancer is etiologically related to his active duty service? * Is it at least as likely as not that the Veteran's lung cancer and/or throat cancer was caused or aggravated by the Veteran's service-connected hepatitis C. A complete rationale addressing the relevant evidence in the claims file, including service treatment records, service personnel records, lay statements, and post-service treatment records, should be given for all opinions and conclusions, expressed in a typewritten report. If the requested opinion cannot be provided without resort to mere speculation, the examiner must state this and must explain why the opinion cannot be provided without resort to mere speculation. 3. After completion of the above development, the Veteran's claims of entitlement to service connection for lung cancer, to include as secondary to asbestos exposure, exposure to ionizing radiation, and hepatitis C; and throat cancer, to include as secondary to exposure to ionizing radiation and hepatitis C should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The appellant 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. 2012). _________________________________________________ M. N. HYLAND Acting 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) (2012).