Citation Nr: 1428069 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-17 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for esophageal cancer, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for lung cancer, to include as due to exposure to Agent Orange, has been raised, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran asserts that he had esophageal cancer that is related to exposure to Agent Orange during his service in the Republic of Vietnam. He argues, in part, that his esophageal cancer should be considered a cancer of the respiratory system, such that service connection is warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran personnel records show that he served at a medical facility in DaNang, Vietnam, and he is therefore presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (emphasis added). However, if the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also not satisfied, then the veteran's claim shall fail under this theory of entitlement. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). The United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board first notes that since the issuance of the most recent supplemental statement of the case in January 2013, additional medical evidence in the form of private treatment reports, dated in 2014, has been associated with the claims file. This evidence is not accompanied by a waiver of RO review, nor has it been reviewed by the RO. See 38 C.F.R. § 20.1304(c) (2013). On remand, this evidence must be reviewed in association with the readjudication of the Veteran's claim. The Veteran's service treatment records do not show any relevant treatment or diagnoses. The post-service medical evidence includes private treatment reports which show that in 2008, the Veteran was found to have esophageal carcinoma. This evidence is remarkable for notations of a long history of smoking. See e.g., May 2008 report from McKee Medical Center (noting a 50 pack/year history of smoking, with cessation about six months' before). A statement from S.S., M.D., dated in August 2012, shows that he states that the Veteran's esophageal adenocarcinoma was diagnosed in May 2008, and that, "[W]hile there is no definitive evidence, as likely as not, his cancer is due to his exposure to the dioxins, which are known to be associated with a wide variety of cancers." VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran has not yet been afforded an examination, and an etiological opinion has not been obtained. Under the circumstances, the Board finds that the Veteran should be afforded an examination, and an etiological opinion should be obtained. McLendon. The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of his esophagus to determine whether or not his esophageal cancer is related to his service. The claims files must be provided to the examiner in connection with the examination, and the examiner should indicate that the claims files have been reviewed. The examiner should be informed that the Veteran's active duty was between June 1966 and June 1970, that he had service in Vietnam, and that his exposure to herbicides during service in Vietnam is presumed. The examiner should provide opinions as to the following: a) Whether the Veteran's esophageal cancer is properly characterized as a "respiratory cancer," and; b) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's esophageal cancer was manifested during, or otherwise caused by, active duty service or any incident therein, to include as due to Agent Orange exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All opinions expressed should be supported by a detailed rationale with discussion of the evidence and other medical opinions of record. 2. Readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations, not previously provided, considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The claims files should then be returned to the Board, if otherwise in order. 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). _________________________________________________ JOHN J. CROWLEY 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).