Citation Nr: 0001210 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 91-45 245 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for hepatocellular carcinoma (liver cancer). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from January 1960 to October 1962, and from January 1965 to January 1967, including service in Vietnam. This case came to the Board of Veterans' Appeals (Board) from a February 1996 RO decision which denied service connection for liver cancer. In a November 1997 decision, the Board, in pertinent part, denied the claim for service connection for liver cancer, holding that the claim was not well grounded. The veteran then appealed to the United States Court of Veterans Appeals (now called the United States Court of Appeals for Veterans Claims (Court)). In a February 1999 memorandum decision, the Court determined that the veteran's claim for direct service connection for liver cancer was well grounded, and remanded the claim for further action. In its February 1999 memorandum decision, the Court affirmed the Board's November 1997 denial of the veteran's claim for service connection for post-traumatic stress disorder (PTSD). Thus such issue is not before the Board. By a letter dated in February 1999, the veteran's representative submitted an application to reopen the previously denied claim for service connection for PTSD. In a July 1999 decision, the RO denied service connection for PTSD. A notice of disagreement was received from the veteran on this issue in July 1999, but a statement of the case has not been issued. The veteran also submitted additional evidence on this issue in July and August 1999. This Board refers this issue to the RO for appropriate action. The RO should consider the additional evidence, determine whether new and material evidence has been presented sufficient to reopen the claim for service connection for PTSD, and, if the claim is reopened, determine whether service connection for PTSD is warranted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). If the RO does not grant the benefit, a statement of the case should be issued, and the veteran should be given an opportunity to perfect an appeal by filing a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991). The only matter now before the Board is entitlement to service connection for liver cancer. REMAND The veteran claims service connection for liver cancer (on a direct, not a presumptive, basis) as a result of herbicide (e.g., Agent Orange) exposure during his service in Vietnam. In brief, the evidence shows that during his second period of Army service he was in Vietnam from January to October 1966; during that time he performed non-combat duties as a personnel and administrative specialist. He was discharged from his last period of service in January 1967. Post- service medical records show that during a May 1989 VA Agent Orange examination, there were some abnormal laboratory findings concerning the liver. In July 1989, the veteran was diagnosed with acute liver toxicity secondary to alcohol. A January 1990 VA liver-spleen scan was abnormal and indicated a chronic parenchymal liver disease. In March 1990, the veteran's family physician, G. Collier, M.D., stated that the veteran had "chronic abnormal liver enzyme studies which [are] indicative of his exposure to Dioxin." In August 1995, the veteran was admitted to a VA hospital with a massive gastrointestinal bleed; on discharge, he was diagnosed with alcohol dependence, possible carcinoma of the liver with metastases, possible alcoholic liver disease with good hepatic function, and diabetes mellitus. That same day, he was transferred to another VA facility, where he was diagnosed with hepatocellular carcinoma. In a November 1996 clinical note, a VA psychiatrist, B. Abramson, D.O., stated that "liver cancer due to Agent Orange is service-connected according to VA." In an April 1997 referral for physical therapy, Dr. Abramson indicated that the veteran "suffers from liver disease due to agent orange exposure." The Court's February 1999 memorandum decision determined that the veteran's claim for direct service connection for liver cancer was well grounded in view of the statements of two doctors who opined that the liver cancer was related to Agent Orange exposure in service. The Court noted that, at the stage of analyzing the claim to determine if it was well grounded, the worth of the doctors' statements should not have been weighed, and if their qualifications remained in doubt, the duty to assist in the well-grounded claim required a more qualified medical evaluation. Shortly after the February 1999 memorandum decision in the instant case, the Court entered a precedent panel decision in the case of McCarrt v. West, 12 Vet.App. 168 (1999), which involved another veteran who had claimed service connection for a disease alleged to be due to Agent Orange exposure in Vietnam. In McCarrt, the Court noted that when a veteran claims service connection for a disease as due to Agent Orange, and the disease is not among those listed in the law for presumptive service connection based on Agent Orange exposure, for the claim to be well grounded there must be competent evidence of actual exposure to Agent Orange during Vietnam service (in addition to competent medical evidence of a current disability and competent medical evidence of linkage between the disability and the Agent Orange exposure in service). That is, in such circumstances there is no presumption that the veteran was exposed to Agent Orange merely because he served in Vietnam. In light of McCarrt, the veteran should be given an opportunity to submit any evidence that he was actually exposed to Agent Orange during his time in Vietnam. In November 1999, the veteran's attorney submitted additional medical evidence. The veteran has not waived initial RO consideration of such evidence, and thus the evidence must be referred to the RO for review and a supplemental statement of the case. 38 C.F.R. § 20.1304 (1999). In light of the Court's memorandum decision, and the opinions of Drs. Collier and Abramson, the Board finds that additional evidence should be obtained, including any ongoing medical treatment records and a VA examination with an opinion as to whether the veteran's current liver cancer is related to his military service, including any in-service herbicide exposure. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1999). In view of the foregoing, the case is remanded for the following action: 1. The RO should give the veteran an opportunity to submit any independent evidence to support his allegation that he was actually exposed to Agent Orange (or other herbicides) during his service in Vietnam. 2. The RO should ask the veteran whether he has received any VA or non-VA treatment for liver cancer since 1998. If he has, the RO should obtain copies of the related medical records (which are not already on file). 3. Thereafter, the RO should have the veteran undergo a VA oncological examination to determine the etiology of his liver cancer. The claims folder must be provided to and reviewed by the doctor. The VA examiner should note the medical opinions of Drs. Collier and Abramson. Based on examination findings, historical evidence, and medical principles, the VA doctor should provide a medical opinion, with full rationale, as to the likelihood that current liver cancer was medically caused by the veteran's military service (including claimed Agent Orange/other herbicide exposure during service in Vietnam). 4. Thereafter, the RO should review the claim for service connection for liver cancer. If the claim is denied, the veteran and his representative should be issued a supplemental statement of the case, 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 the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. L. W. TOBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1998).