Citation Nr: 1828549 Decision Date: 05/10/18 Archive Date: 05/18/18 DOCKET NO. 14-36 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for mediastinal mass of infarcted, hemorrhagic thymoma and hyperplastic lymph nodes as a result of exposure to herbicide agents. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the United States Army from May 1968 to January 1971, to include service in the Republic of Vietnam for which he was awarded a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO), which denied service connection for mediastinal mass of infarcted, hemorrhagic thymoma and hyperplastic lymph nodes as a result of exposure to herbicide agents. In November 2016, the Veteran filed a notice of disagreement with the RO's October 2016 rating decision which denied entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). Typically, when there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, the veteran is entitled to a statement of the case, and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). Here, however, the RO has acknowledged the Veteran's notice of disagreement in December 2016 correspondence, and additional action is pending. As such, this situation is distinguishable from Manlincon where a notice of disagreement had not been recognized, and Manlincon is not applicable in this case. The Board declines to remand this matter, and instead, the claim is referred to the RO for continued development and the issuance of a statement of the case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 313 (2007). The Veteran was afforded a VA examination in February 2013 to determine the nature and etiology of diagnosed mediastinal mass of infarcted, hemorrhagic thymoma and hyperplastic lymph nodes, to include as due to exposure to herbicide agents. The Board acknowledges that the RO has conceded service within the Republic of Vietnam and, therefore, the Veteran is presumed to have been exposed to herbicide agents while in service. See 38 C.F.R. § 3.307(a)(6)(iii) (2017). The February 2013 VA examiner opined that the Veteran's malignant thymoma was less likely than not related to service, to include conceded herbicide agent exposure, reasoning that thymoma was not a presumed disability caused by herbicide agent exposure per VA regulations. The examiner indicated he could not resolve the etiology of the Veteran's condition without resorting to mere speculation. While the Board recognizes that thymoma is not recognized as a disability related to exposure to herbicide agents while serving in the Republic of Vietnam, this does not preclude service connection on a direct basis. See 38 C.F.R. §§ 3.307, 3.309 (2017); Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Further, the opinion is inadequate because the examiner did not explain why such opinion would be speculative. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). The Board, therefore, finds that remand is necessary for a VA addendum opinion to determine the nature and etiology of diagnosed malignant thymoma as due to exposure to herbicide agents on a direct basis. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any and all outstanding VA treatment records. 2. After completion of the above development, obtain a VA addendum opinion from a qualified physician to determine the etiology of currently diagnosed mediastinal mass of infarcted, hemorrhagic thymoma and hyperplastic lymph nodes. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The record should be made available for review in connection with this request. Upon review of the relevant evidence and sound medical principles, the VA examiner is asked to determine whether it is at least as likely as not (a 50 percent or greater probability) that diagnosed mediastinal mass of infarcted, hemorrhagic thymoma and hyperplastic lymph nodes is etiologically/directly related to the Veteran's service, to include as due to conceded exposure to herbicide agents. Although the Veteran's diagnosed condition is not among the listed conditions for which service connection is presumed based on exposure to herbicide agents, this does NOT necessarily preclude service connection. In providing the above opinions, the Board directs the VA examiner to consider, but not limit review to, the October 2005 and October 2007 previously-decided Board decisions, and the medical evidence discussed therein, associated with the Veteran's claims file in June 2017. (These decisions are non-precedential but may be informative.) The phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After all development has been completed, the AOJ should review the claims again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The veteran 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). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).