Citation Nr: 1622413 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 10-44 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for post-operative residuals of medullary thyroid cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970. He had service in Vietnam and is presumed to have been exposed to herbicides/Agent Orange therein. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a January 2009 rating decision of the VA Regional Office (RO) in Chicago, Illinois. The Veteran was afforded a videoconference hearing at the RO in October 2014 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. The case was remanded by Board decision in December 2014. Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the record discloses that in October 2010, the Veteran's treating VA endocrinologist furnished a report regarding a possible link between Agent Orange and medullary carcinoma of the thyroid gland. The evidence submitted in support of his finding that "Agent Orange may well be causally linked" to the Veteran's thyroid cancer included a prior Board decision (of record) and an expert witness' statement in a Canadian legal case who testified that "high levels of exposure to hexachlorobenzene, a contaminant of picloram, an herbicide and a component of Agent Orange, "have been reported as being associated with a high prevalence of soft-tissue sarcoma and thyroid cancer." The VA physician did not offer any specific reasoning or rationale in support of a nexus between medullary thyroid cancer and exposure to Agent Orange. In its December 2014 remand, the Board pointed out that despite the Veteran's service in the Republic of Vietnam and conceded exposure to Agent Orange, thyroid cancer was not a disease for which presumptive service connection applied under 38 C.F.R. § 3.309(e)(2014). It was noted, however, a claimant may establish direct service incurrence when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed.Cir. 1994). VA must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to Agent Orange, but must also ascertain whether the disability is otherwise the result of active service and exposure to Agent Orange. The Board observed that although vague, there was an opinion in the record that the appellant's thyroid cancer might be causally related to exposure to Agent Orange in Vietnam, although the rationale provided in support of the conclusion was substantially lacking. In view of such, due to the relative complexity of the subject matter, the case was remanded for the Veteran to be examined by a specialist in Agent Orange diseases or a board-certified endocrinologist for an expert opinion. The Board also noted that in VA outpatient notes dated in August 2007, the Veteran's treating VA endocrinologist indicated that the appellant needed "RET gene mutation" testing to determine if he had hereditary thyroid cancer. On examination, the examiner was requested to indicate whether testing in this regard was accomplished and if so, to provide an assessment of the analysis and the clinical implications of the findings. This is not clearly set out in the opinion rendered, although it is noted that there was no reported family history of similar cancer. The Board observes, however, that in April 2015 the Veteran was not examined by the requested specialist but a family practice physician. As such, while a fairly comprehensive opinion was set out, this examination and opinion fail to comply with the terms of the Board's remand and is therefore inadequate. See Stegall v. West, 11 Vet.App. 268 (1998). If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with the Board errs in failing to ensure compliance. In view of the foregoing, records should be sent to an appropriate specialist for an opinion, and if an opinion cannot be entered without an additional examination, that examination should be conducted. It is noted that additional study information has been submitted by the Veteran's representative in a recent written presentation. Accordingly, the case must be REMANDED once again for the following actions: 1. Forward all records in the electronic folders to a VA expert/specialist in Agent Orange diseases or a board-certified endocrinologist, who has not seen him previously, to determine the likely etiology of medullary thyroid cancer. The electronic claims folders must be made available to and be reviewed by the examiner. Consideration and discussion of the October 2010 letter and documented studies in the record should be advanced. A notation to the effect that records review takes place should be included in examiner's report as well as his or her specialty of expertise and qualifications. If the questions below can be answered without additional examination, those responses should be entered. If it is determined that additional examination is indicated, all indicated tests and studies should be performed, and all clinical findings set forth in detail. After reviewing the record and examining the Veteran (if needed), the examiner should provide an opinion as to the following: a) Whether medullary carcinoma of the thyroid is at least as likely as not (a 50 percent or better probability) causally related active service, to include exposure to Agent Orange in Vietnam, or b) Whether it is at least as likely as not medullary thyroid cancer is familial in origin and unrelated to Agent Orange exposure, or c) Whether it is at least as likely than not that medullary thyroid cancer is secondary to or is aggravated by a service-connected disorder, including prostate cancer or d) Whether medullary thyroid cancer is more likely than not of post service onset and unrelated to service herbicide exposure or a service-connected disorder? A complete rationale must be given for all opinions and conclusions reached in a detailed narrative report. Please also note whether any gene testing appears to have been done or appears to be needed or is unnecessary. 2. The AOJ should ensure that the medical report requested above complies with this remand to avoid a future remand. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall, supra. 3. After taking any further development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit is not granted, the appellant and representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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 2014). _________________________________________________ MICHAEL D. LYON 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).