Citation Nr: 1751651 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for throat cancer, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2016 the Veteran testified in a Videoconference Hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his throat cancer, diagnosed in 2012, is due to service, specifically to include as a result of his conceded exposure to herbicides during service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). During the November 2016 hearing, he testified that his treating physicians were aware of his herbicide exposure but would not say whether his cancer was related to that exposure because "it's not on the list." The Veteran's herbicide exposure is conceded, however throat cancer is not one of the enumerated diseases that is entitled to presumptive service connection due to herbicide exposure. 38 C.F.R. § 3.309(e). It is unclear whether the Veteran's treating physician would have provided an etiology opinion is the throat cancer was on the list of presumptive diseases. To date the record contains no competent medical opinion concerning the etiology of the Veteran's throat cancer, but given the question surrounding the treating physician's response to providing an opinion, the Board finds that this evidence requires a VA examination to obtain a nexus opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran further testified that he receives all of his treatment from the VA. Since the claim is being remanded, any additional treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record all outstanding VA medical treatment records regarding the Veteran. 2. After completion of the forgoing, schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's diagnosed throat cancer. The examiner must be provided the Veteran's claims file for review. Based on review of the record, examination, and consideration of the Veteran's lay statements, the examiner should answer the following questions. Is it at least as likely as not (50 percent probability or better), that the Veteran's diagnosed throat cancer, had its onset in service or is causally related to service, to include exposure to herbicides in Vietnam and the Republic of Korea. In answering the question, the examiner is informed that the Veteran's exposure to herbicides is conceded. The examiner should also comment on the Veteran's lay statements concerning the asserted link between his throat cancer and herbicide exposure. A complete and detailed rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the claim on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given 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). _________________________________________________ M.E. LARKIN 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) (2017).