Citation Nr: 1757570 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-14 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for carcinoid tumor of the small bowel, claimed as due to exposure to herbicide agents and/or as secondary to service-connected prostate cancer. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence, and waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record after the issuance of the March 2014 statement of the case. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider all of the evidence of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he has a carcinoid tumor of the small bowel as a result of his exposure to herbicide agents coincident with his service in the Republic of Vietnam. In this regard, the record reflects that the Veteran served in Vietnam from November 1967 to November 1968. Thus, he is presumed to have been exposed to herbicide agents coincident with such service. Additionally, during his March 2017 Board hearing, the Veteran testified that he was told by his physicians that his carcinoid tumor was similar in nature and construct to non-Hodgkin's lymphoma or chronic lymphocytic leukemia, two cancers that are acknowledged to be presumptively related to exposure to herbicide agents, and as a result, such tumor should be considered to be related to his herbicide exposure. The Veteran further contends, in the alternative, that his carcinoid tumor of the small bowel is caused or aggravated by his service-connected prostate cancer. However, during his March 2017 Board hearing, the Veteran testified that he was unsure as to whether his prostate cancer metastasized to create his carcinoid tumor as he believed that his prostate cancer was in remission at the time that his carcinoid tumor was diagnosed. Additionally, the Veteran and his spouse reported that the Veteran was told by his physicians that they believed that his carcinoid tumor and prostate cancer were separate cancerous entities. A review of the record reflects that the Veteran' underwent a small bowel resection for a carcinoid tumor in April 2011. Subsequent records dated in April 2017 reflect that such tumor recurred. Specifically, at such time, it was noted that there was biochemical evidence of recurrent neuroendocrine tumor consistent with the Veteran's original carcinoid tumor in April 2011. Furthermore, October 2017 private treatment records indicate an impression of a neuroendocrine tumor of the small bowel/carcinoid tumor, and a notation of a relapsing malignant carcinoid with multiple pulmonary nodules and peritoneal carcinomatosis. In reference to the March 2017 Board hearing testimony, in April 2017, the Veteran submitted handwritten notes taken by his spouse with respect to his private examination with Dr. S.H. Here, the Veteran's spouse indicated that, during the Veteran's examination, Dr. S.H. reported that there was no relationship between prostate cancer and a carcinoid tumor; however, a carcinoid tumor was under the neuroendocrine group of cancers, similar to non-Hodgkin's lymphoma or chronic lymphocytic leukemia. Additionally, an August 2012 private letter from Dr. J.B. reports that the Veteran did not have colon cancer, but rather a primary cancer of the small bowel, which was a carcinoid tumor. Dr. J.B. further reported that carcinoid tumors were rare glandular tumors. Additionally, he indicated that the relationship between Agent Orange exposure and a carcinoid tumor was possible as carcinoid tumors have a glandular structure that may take up and concentrate poisons, similar to lymphomas, which have been found to be related to herbicide exposure. However, the Board cannot rely on such opinion to grant service connection for the Veteran's carcinoid tumor as it is speculative in nature. In this regard, a speculative medical opinion provides neither positive nor negative support for the Veteran's claim. Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (use of the phrase "may well be" with the caveat that he was not an expert on causation was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of the term "could," without other rationale or supporting data, is too speculative to support award of benefits). Nonetheless, the Board finds that, in light of the August 2012 private medical opinion by Dr. J.B. indicating a possible relationship between the Veteran's carcinoid tumor and presumed exposure to herbicide agents and the suggestion that Dr. S.H. reported that a carcinoid tumor was similar to non-Hodgkin's lymphoma or chronic lymphocytic leukemia, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his carcinoid tumor. See McLendon v. Nicholson, 20 Vet. App. 79 (2006)). Furthermore, the Board notes that while the April 2017 handwritten notes taken by the Veteran's spouse indicated that Dr. S.H. reported that there was no relationship between prostate cancer and a carcinoid tumor, none of the Veteran's VA or private treatment records address whether his carcinoid tumor was caused or aggravated by his service-connected prostate cancer. Therefore, a remand is necessary in order to obtain an opinion that adequately addresses all of the Veteran's theories of entitlement. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his carcinoid tumor of the small bowel. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's carcinoid tumor of the small bowel is related to his acknowledged in-service exposure to herbicide agents. In this regard, the examiner should specifically discuss the Veteran's claim that his carcinoid tumor of the small bowel is similar in nature and construct to non-Hodgkin's lymphoma or chronic lymphocytic leukemia, two cancers that are acknowledged to be presumptively related to exposure to herbicide agents, and as a result, such tumor should be considered to be related to his herbicide exposure. In offering such opinion, the examiner should take into consideration all of the evidence of record, to include the August 2012 private medical opinion by Dr. J.B. indicating a possible relationship between the Veteran's carcinoid tumor and presumed Agent Orange exposure as carcinoid tumors have a glandular structure similar to lymphomas; the April 2017 handwritten notes taken by the Veteran's spouse indicating that Dr. S.H. reported that a carcinoid tumor was under the neuroendocrine group of cancers, similar to non-Hodgkin's lymphoma or chronic lymphocytic leukemia; as well as accepted medical principles and objective medical findings. (B) The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's carcinoid tumor of the small bowel is caused or aggravated by his service-connected prostate cancer. If aggravation is found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. All opinions expressed must be accompanied by supporting rationale. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).