I was also posted in Chu Lai and have had a large AN removed in 2006. I have been watching the appeals to the VA and have noticed the following new one. Here it is:
Citation Nr: 1435039
Decision Date: 08/06/14 Archive Date: 08/20/14
DOCKET NO. 13-13 724 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for a lung tumor, claimed as lung disease, to include as secondary to Agent Orange exposure.
2. Entitlement to service connection for a brain tumor, characterized as acoustic neuroma, to include as secondary to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mary-Caitlin Ray, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1956 until March 1975.
These claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
During the course of his appeal, the Veteran requested a hearing before the Board in Washington, DC. In June 2014, the Veteran indicated that he wished to cancel his hearing request. Thus, the hearing request is withdrawn. See 38 C.F.R. § 20.704 (2013).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Regrettably, the Board finds that further development is needed to adjudicate these claims.
The Veteran contends that his brain and lung tumors are related to his active service, specifically to Agent Orange exposure during service in Vietnam.
Service treatment records show that the Veteran was treated repeatedly for numbness of the hands and arms. An August 2011 Agent Orange Memo indicates that the Veteran is presumed to have been exposed to Agent Orange during active service. Post-service treatment records show a diagnosis of an acoustic neuroma in July 1999. Private treatment records from August 2002 show that the Veteran has a history of lung tumors, and a January 2006 private treatment record shows a left lung resection due to a fungal tumor. As the Veteran has not been afforded VA examinations for these claimed disorders, the Board finds that he should be afforded a VA examination to determine whether these disorders are due to active service, to include exposure to Agent Orange. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim).
Accordingly, the case is REMANDED for the following actions:
(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. Request that the Veteran provide sufficient information, and authorization, to enable VA to obtain any additional evidence (both VA and non-VA medical records), not already of record, which pertains to the claims on appeal.
2. Then, schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of any brain tumors, to include an acoustic neuroma. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The examiner is requested to opine:
Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that any brain tumors, to include acoustic neuroma were incurred in or as a result of the Veteran's active service, to include exposure to Agent Orange. The examiner is requested to comment on findings of numbness and tingling in the Veteran's service treatment records.
In rendering the requested opinion, the examiner should note that the Veteran's exposure to Agent Orange has been conceded. The examiner should specifically consider and discuss the Veteran's contentions, the lay history of symptomatology, and all relevant medical evidence of record. The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible.
If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. He/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)
3. Schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of his claimed lung disorder. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The examiner is requested to opine:
a) Whether the Veteran has a current lung disorder;
b) and if so, whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a lung disorder was incurred in or as a result of the Veteran's active duty service, to include exposure to Agent Orange. In providing the requested opinions, the examiner should comment on medical records noting that the Veteran underwent a lung resection due to a fungus/fungal tumor.
In rendering the requested opinion, the examiner should note that the Veteran's exposure to Agent Orange has been conceded. The examiner should specifically consider and discuss the Veteran's contentions, the lay history of symptomatology, and all relevant medical evidence of record. The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible.
If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. He/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)
4. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.
No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2013). He 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 Supp. 2013).
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Lesley A. Rein
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).
