Citation Nr: 1730516 Decision Date: 08/01/17 Archive Date: 08/11/17 DOCKET NO. 15-26 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for esophageal cancer, to include as due to exposure to an herbicide agent. (The issues of entitlement to an increased disability rating for posttraumatic stress disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities are the subject of a separate Board decision.) REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was remanded in October 2015 to afford the Veteran a hearing before the Board. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidentiary record. There are multiple appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will consider all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). The issue of entitlement to service connection for esophageal cancer will be addressed in this decision. The issues of entitlement to an increased disability rating for posttraumatic stress disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities will be addressed in a separate decision because multiple hearings were held on those issues before different Veterans Law Judges. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In September 2008, the Veteran submitted an Authorization and Consent to Release Information form for treatment records from Dr. L.R.M., who he identified as his family doctor. The RO undertook appropriate attempts to obtain these treatment records though November 2008 and January 2009 letters to Dr. L.R.M., and a January 2009 letter to the Veteran. See 38 C.F.R. § 3.159(c) (2016). However, no treatment records from Dr. L.R.M. were received. In September 2010, the Veteran submitted a new Authorization and Consent to Release Information form for treatment records from Dr. L.R.M., indicating an office visit in November 2009 related to his esophageal cancer. In a February 2012 letter, the RO requested copies of the Veteran's treatment records from Dr. L.R.M. To date, no treatment records or a negative response from Dr. L.R.M. have been received, and it does not appear that any further development has been performed. The Board finds the submission of the September 2010 Authorization and Consent to Release Information form has again triggered VA's duty to assist the Veteran in obtaining treatment records from Dr. L.R.M. On remand, the AOJ should undertake appropriate development to obtain any outstanding relevant private treatment records. The Veteran contends that his esophageal cancer is related to his exposure to Agent Orange during his service in Vietnam. The Veteran's service personnel records confirm the Veteran served in the Republic of Vietnam from April 1966 to April 1967. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) 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. 38 C.F.R. § 3.307(a)(6)(iii). However, esophageal cancer is not listed in 38 C.F.R. § 3.309(e). Although esophageal cancer has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide agent exposure, it must still be determined whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, on remand, the AOJ should obtain a medical opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's esophageal cancer. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain all outstanding treatment records pertinent to the Veteran's claim, to include from Dr. L.R.M., to include from November 2009. When contacting the Veteran to obtain any necessary release, the AOJ should provide the full name of Dr. L.R.M. as identified in the September 2010 Authorization and Consent to Release Information form to aid him in identifying these records. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. The AOJ should obtain any outstanding VA treatment records, to include any updated VA treatment records dated from November 2015 to the present. All obtained records should be associated with the evidentiary record. 3. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, the AOJ should obtain a medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's esophageal cancer. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The medical opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether an examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the examiner is asked to respond to the following inquiry: Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's esophageal cancer was either incurred in, or is otherwise related to, the Veteran's active duty service, to include exposure to an herbicide agent? The examiner should specifically address the May 1990 Report to Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange submitted by the Veteran regarding a relationship between exposure to Agent Orange and nasal/pharyngeal/esophageal cancers. The examiner should also address the Veteran's contention that the esophagus is in close proximity to the lung, bronchus, larynx, and trachea, which are recognized as being related to Agent Orange exposure, and therefore cancers of the esophagus should also be recognized as a possible result of Agent Orange exposure. Finally, the examiner should also address the Veteran's contention that while he was in Vietnam he also ate local fruit which was most likely contaminated with Agent Orange. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. After the above development has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with 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 matter 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 LANE 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) (2016).