Citation Nr: 1803669 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-43 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for adenocarcinoma of the esophagus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL MELVIS AND RACHEL TORRANCE ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from July 1967 to September 1973. The Veteran specifically served in Vietnam as a helicopter pilot from March 1970 through March 1971. After discharge, the Veteran then reenlisted in the Army National Guard from July 1985 through May 1999. It is noted that the Veteran served courageously both in active duty and in the reserve component. He received various medals, awards, and commendations throughout his military career. In August 2015 the Veteran filed a service connection claim for invasive moderately-differentiated adenocarcinoma (esophageal cancer) due to Agent Orange exposure in Vietnam. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, denying the claim currently on appeal. It is now before the Board for the purpose of appellate review. The Veteran, and two witnesses, testified before the Board via video teleconference in June 2017. A transcript of the hearing is 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.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran has claimed entitlement to service connection for adenocarcinoma of the esophagus (esophageal cancer). He contends that he incurred the disability as a result of the herbicide, Agent Orange that he was exposed to before and during flights. The Veteran served as a helicopter pilot. Service connection may be presumed for certain diseases if a veteran served in the Republic of Vietnam at any time from January 9, 1962, to May 7, 1975. 38 C.F.R. § 3.307(a). While esophageal cancer is not on the list of presumptive diseases associated with exposure to Agent Orange, service connection may still be established by showing that a disorder was in fact causally linked to such exposure. See 38 U.S.C. §§ 1113(b), 1116 (2012); 38 C.F.R. §§ 3.303, 3.309(e) (2017); see also Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The record indicates that the Veteran served in the Republic of Vietnam during the relevant time period, so he may be presumed to have been exposed to herbicides. Private treatment records from Mayo Clinic confirm that in June 2015 the Veteran presented with abdominal discomfort and 25 pound weight loss over two months. An endoscopy was performed and a mass was noted in the distal esophagus; the Veteran was subsequently diagnosed with stage III esophageal cancer. Since then the Veteran has undergone various chemotherapy and medication regimens. On February 1, 2016, one of the Veteran's providers at Mayo Clinic submitted a statement that he finds it reasonably conceivable that Agent Orange played a role in the development of the Veteran's metastatic esophageal cancer. While the provider is both competent and credible to make an opinion on Veteran's condition as he is a medical doctor who has treated the Veteran at least since June 2015, the statement is absent of any etiology discussion, citation or review of the Veteran's records, or references to supporting clinical testing or current medical literature. Therefore, it is ineffective in providing an adequate statement of causal connection between the disability and herbicide exposure. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Subsequent to the RO issuing a Statement of the Case (SOC), the Veteran submitted another medical opinion. On May 18, 2017, the Veteran's primary care provider (PCP) submitted a statement regarding the etiology of the Veteran's esophageal cancer. He stated that since the Veteran did not have any previous risk factors for cancer of the esophagus, it is more likely than not that the Agent Orange exposure caused the cancer to develop. The PCP has treated the Veteran since 2002 but is not responsible for his cancer treatment. The PCP did not describe the risk factors, and the opinion is not based on findings of positive factors, but rather, the absence of negative. There is no citation to literature, current studies, to the Veteran's clinical results, service records or diagnostic testing. As the Veteran has not yet been afforded a VA examination to determine the etiology of his esophageal cancer, the case must be remanded so a VA examination and opinion may be obtained. See 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the opinions noted above do not alone contain sufficient support and rationale to establish an etiological link, they do at least raise a reasonable possibility of substantiating a claim of entitlement to service connection. An additional examination is therefore needed so that an opinion can be provided that provides a sufficient rationale in support of any conclusion offered. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO or AMC should undertake appropriate development to obtain any outstanding records pertinent to the above-noted claim on appeal. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should also afford the Veteran a VA examination by a physician with sufficient expertise to address the etiology of the Veteran's esophageal cancer. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies must be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder originated during the Veteran's period of active service or is otherwise etiologically related to his active service, to include his presumed in-service exposure to herbicides. The Board stresses that the Veteran's service in Vietnam, and thus his exposure to Agent Orange, is not in question. The examiner must also consider and discuss the private opinions of record (February 2016 and May 2017) suggesting a potential causal relationship between the Veteran's current esophageal cancer and military service. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 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. §§ 5109B, 7112 (2012). _________________________________________________ B. MULLINS 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).