Citation Nr: 1614802 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 09-44 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for squamous cell carcinoma of the throat (including the right tonsil), to include as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active military service from July 1965 to January 1966 and from April 1968 to April 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Jurisdiction over the case was subsequently transferred to the VA RO in Louisville, Kentucky. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2011 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This case was previously before the Board, most recently in October 2014, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. [The issue of entitlement to service connection for bilateral hearing loss disability was also remanded for additional development in the October 2014. Thereafter, in a September 2015 rating action, service connection for this disorder was granted. There is no indication from the record that the Veteran has disagreed with the effective date or ratings assigned to the now service-connected bilateral hearing loss. Therefore, that benefit is deemed to have been granted in full, and the Board has limited its current consideration accordingly. REMAND Regrettably, the Board finds that additional development is required before the claim on appeal is decided. The Veteran asserts that the squamous cell carcinoma of his throat is etiologically related to his exposure to herbicides during active service. As noted above, he did in fact have service in the Republic of Vietnam. Thus, the Board concedes that he was exposed to herbicides during active service. At a March 2012 VA examination, the examiner confirmed that the Veteran had been diagnosed with throat cancer in 2006, but noted that he was currently cancer free. The examiner opined that squamous cell carcinoma of the tonsil was not a disability that had been found to be presumptively related to exposure to herbicides. The examiner did not provide an opinion as to whether the Veteran's squamous cell carcinoma of the throat could be directly related to his active service. Therefore, the March 2012 opinion is not adequate and cannot serve as the basis of a denial of entitlement to service connection. Further, VA Medical Center treatment notes of record show that the Veteran's cancer has been referred to as both pharyngeal and laryngeal cancer. In this regard, the Board notes that respiratory cancers, to include cancer of the lung, bronchus, larynx, or trachea; are presumed to be related to exposure to herbicides. 38 C.F.R. § 3.309 (e) (2015). It is unclear from the record as to whether the Veteran's squamous cell carcinoma of the throat could in fact be considered a respiratory cancer for purposes of entitlement to presumptive service connection. In light of the facts that the only opinion of record is inadequate and that the facts of this case are not entirely clear, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his squamous cell carcinoma of the throat, to include specifically whether it could be considered a respiratory cancer for purposes of presumptive service connection. [In this regard, the Board notes that, in the October 2014 Remand, a request was made to obtain the report of the 2011 VA throat examination. Further review of the file shows that the Appeals Management Center made several attempts to obtain a copy of this examination from the appropriate medical facility but that those attempts were futile. In addition, despite multiple contacts with the Veteran, he did not submit a copy of that report.] Also, current treatment records should be identified and obtained before a decision is made in this case. The case is thus REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file. Any additional treatment records identified by the Veteran should be obtained and associated with his claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. He is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the squamous cell carcinoma of the Veteran's throat. The examiner must review the claims file and note that review in the report. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether there is a 50 percent or greater probability that the squamous cell carcinoma of the Veteran's throat is considered a respiratory cancer. In forming the opinion, the examiner should specifically address the instances in which the Veteran's cancer is referred to as laryngeal cancer. If the squamous cell carcinoma of the Veteran's throat is not considered to be a respiratory cancer, the examiner should provide an opinion as to whether there is a 50 percent or greater probability that this disorder is etiologically related to the Veteran's active service, to include exposure to herbicides while serving in the Republic of Vietnam. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the issue of entitlement to service connection for squamous cell carcinoma of the throat (including the right tonsil), to include as due to in-service exposure to herbicides. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and return the case to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). He is also advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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) (2015).