Citation Nr: 1621138 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 15-14 447A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for colon cancer, liver cancer, lung cancer, and cancer of the lymph nodes, to include as due to Agent Orange exposure. 2. Entitlement to service connection for stomach cancer, to include as due to Agent Orange exposure. 3. Entitlement to service connection for a seizure disorder, to include as due to Agent Orange exposure. 4. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. 5. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Elizabeth Tarloski ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to December 1969. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2011 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The November 2011 RO decision denied service connection for colon cancer, liver cancer, lung cancer, and cancer of the lymph nodes (listed as colon cancer, with metastasis to the liver, lungs, and lymph nodes), all to include as due to Agent Orange exposure. The March 2014 RO decision denied service connection for stomach cancer, a seizure disorder, and for a skin disorder. The Veteran died in June 2014, during the pendency of his appeal of these issues, and the appellant has been substituted as the claimant for the purposes of processing them to completion. 38 U.S.C.A. § 5121A. The case was later transferred to the jurisdiction of the Philadelphia, Pennsylvania RO. The Board notes that the March 2014 RO decision also essentially addressed whether there was clear and unmistakable error (CUE) in November 2011 and August 2012 RO decisions that denied service connection for colon cancer, liver cancer, lung cancer, and cancer of the lymph nodes, all to include as due to Agent Orange exposure. As the initial 2011 rating decision addressing these issues is currently on appeal, there is no final adverse RO or Board decision on this matter that can be subject to a CUE attack; thus, as a matter of law, the appellant cannot assert a claim of CUE. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). If, however, the appellant seeks to allege CUE in another RO or Board decision, she is invited to do so and the RO should thereafter take all appropriate action. Additionally, in statements on appeal, including in a February 2014 statement, the appellant's representative has raised issues of entitlement to service connection for brain cancer, brain tumors, and brain disease, as well as for residuals of a cerebrovascular accident, all to include as due to Agent Orange exposure. These issues are not before the Board at this time and are referred to the RO for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant contends that the Veteran's colon cancer, liver cancer, lung cancer, and cancer of the lymph nodes, as well as his stomach cancer, a seizure disorder, and a skin disorder, are all related to service, to include as due to Agent Orange exposure. The appellant has also asserts that the Veteran's lung cancer was a primary cancer in addition to his colon cancer. The Veteran died in June 2014. The death certificate lists the immediate cause of death as carcinoma of the colon. The Veteran served on active duty from February 1962 to December 1969. His exposure to Agent Orange has been conceded. The Veteran's service treatment records do not show complaints, findings, or diagnoses of colon cancer, liver cancer, cancer of the lymph nodes, stomach cancer, seizure disorders, or skin problems. Such records do show that the Veteran reported that he had frequent indigestion at the time of an August 1969 separation examination. Post-service private and VA treatment records show treatment for multiple disorders including colon cancer, as well as cancer in the liver, lungs, and lymph nodes. Such records also refer to squamous cell cancer of the skin, intra-abdominal disease, and a seizure disorder. There are several statements of record from physicians that address the etiology of the Veteran's metastatic colon cancer. For example, a January 2012 statement from J. Q. A. Mattern, II, D.O., indicated that he had treated the Veteran since July 2009 for metastatic adenocarcinoma of the colon. Dr. Mattern stated that the Veteran presented with liver metastases. It was noted that the Veteran was receiving chemotherapy and that he was doing satisfactorily with the treatment. Dr. Mattern indicated that the treatment would not cure the Veteran. Dr. Matter reported that it had come to his attention that the Veteran had Agent Orange exposure during the Vietnam Conflict, as he had spent one year in Thailand where he was exposed to Agent Orange on a regular basis. Dr. Mattern stated that the Veteran had no family history of colorectal cancer and that he had no other risk factors for colon cancer. Dr. Mattern maintained that he believed with a reasonable degree of medical certainty that the Veteran's exposure to Agent Orange to a significant degree had led to his contracting colon cancer. A February 2012 statement from B. Billings, M.D., indicated that he had treated the Veteran for Stage IV colon cancer since August 2009. Dr. Billings stated that the Veteran presented with an obstructing, widely metastatic, cancer. It was noted that the Veteran had a documented history of Agent Orange exposure. Dr. Billings stated that during the Veteran's deployment in Vietnam, he spent almost a year patrolling the jungle around an air strip he was charged with protecting. Dr. Billings indicated that the Veteran reported that the area had been treated with Agent Orange, which was implicated in the origin of several types of malignancies. Dr. Billings commented that although Agent Orange had yet to be positively associated with colon cancer, it was plausible that exposure to a known carcinogenic substance could lead to an increased risk of colon cancer. A July 2012 statement from Dr. Mattern noted that he had treated the Veteran since the summer of 2009 for metastatic adenosarcoma starting in the colon. Dr. Mattern stated that the Veteran had intraabdominal disease, liver disease, and lung disease. It was noted that the Veteran also had squamous cell cancer of the skin and that he was recently diagnosed with type 2 diabetes mellitus. Dr. Mattern commented that in his opinion, the cancer in the Veteran's lungs was at least as likely as not to have been primary, as well as with his primary colon cancer. A September 2014 statement from Dr. Mattern noted that the Veteran died of complications of metastatic adenocarcinoma from his colon. Dr. Mattern commented that with a reasonable degree of medical certainty, there was a relationship between the Veteran's military exposure to a variety of toxins and his ultimate colon cancer that led to his death. The Board observes that there is no indication that Dr. Mattern and Dr. Billings reviewed the Veteran's entire claims file before providing their respective opinions that the Veteran's metastatic colon cancer was related to his exposure to Agent Orange during service. Additionally, neither Dr. Mattern nor Dr. Billings provided much in the way of rationale for their respective opinions. Finally, there is no opinion addressing the relationship, if any, between the Veteran's seizure and skin disorders and his herbicide exposure. Accordingly, medical opinions must be obtained on remand to decide the claims. Additionally, the Board notes that a March 2015 RO decision denied service connection for the cause of the Veteran's death. In March 2016, the appellant expressed disagreement with that decision. To date, the AOJ has not issued a Statement of the Case (SOC) as to the issue of entitlement to service connection for the cause of the Veteran's death, and one must be furnished on remand. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, this issue is REMANDED for the following actions: 1. Make arrangements for the entire claims file, to include all electronic records, to be forwarded to an appropriate examiner to determine the likely etiology of the Veteran's colon cancer, liver cancer, lung cancer, cancer of the lymph nodes, and stomach cancer. Based on a review of the claims file and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not (50 percent or greater probability) that any diagnosed colon cancer, liver cancer, lung cancer, cancer of the lymph nodes, and stomach cancer had their onset in or are otherwise related to service, to include as a result of his conceded Agent Orange exposure therein. In rendering this opinion, the examiner should comment on the frequent indigestion noted at the time of the Veteran's August 1969 separation, as well as the January 2012, February 2012, July 2012 and September 2014 opinions of Drs. Mattern and Billings. The report must include a complete rationale for all opinions expressed. 2. Make arrangements for the entire claims file, to include all electronic records, to be forwarded to an appropriate examiner to determine the likely etiology of the Veteran's seizure disorder. Based on a review of the claims file and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not (50 percent or greater probability) that any diagnosed seizure disorder had its onset in or was otherwise related to service, to include as a result of his conceded Agent Orange exposure therein. The report must include a complete rationale for all opinions expressed. 3. Make arrangements for the entire claims file, to include all electronic records, to be forwarded to an appropriate examiner to determine the nature and likely etiology of the Veteran's skin disorder. Based on a review of the claims file and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not (50 percent or greater probability) that any skin disorder, to include squamous cell carcinoma of the skin, had its onset in or was otherwise related to service, to include as a result of his conceded Agent Orange exposure therein. The report must include a complete rationale for all opinions expressed. 4. Separately, issue the appellant a SOC as to the issue of entitlement to service connection for the cause of the Veteran's death, to include notification of the need to timely file a substantive appeal to perfect her appeal on this issue. 5. Then, after taking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for colon cancer, liver cancer, lung cancer, and cancer of the lymph nodes, stomach cancer, a seizure disorder, and a skin disorder. If the benefits sought remain denied, issue a Supplemental Statement of the Case, and return the case to the Board. 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 2014). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).