Veteranclaims’s Blog

August 3, 2013

Single Judge Application; Third McLendon Element; Time Delays Require Expert Medical Knowledge

Excerpt from decision below:
“First, the record contains medical evidence linking chemical exposure and squamous cell carcinoma. See R. at 17. In November 2011, the veteran’s representative referenced a text from the Lahey Clinic to the effect that squamous cell carcinoma may be caused by exposure to chemicals.
The representative essentially argued, inter alia, that based on this medical text the veteran’s Agent Orange exposure in Vietnam constitutes the requisite chemical exposure and the veteran is therefore entitled to a VA examination and opinon.
Although the Lahey Clinic quote does not specifically name Agent Orange as one of the chemicals that may induce squamous cell carcinoma, this may nevertheless satisfy the low threshold of the third McLendon element. See McLendon, 20 Vet.App. at 83 (types of evidence satisfying third element include “medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits”); 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence for VA purposes includes “sound medical principles found in medical treatises”). The Board did not discuss this evidence or evaluate it in terms of the low threshold requirement of an indication that the current disability may be associated with military service. See Caluza, 7 Vet.App. at 506 (Board

must provide reasons for its rejection of any material evidence favorable to the claimant).

Second, the Board’s conclusion that the delay between Mr. McCain’s separation from service and his cancer diagnosis weighs against the third McLendon requirement (R. at 8) is flawed because it is based on the Board’s own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171 (1994)(holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion); see also R. at 13 (Board repeats same analysis in weighing the evidence pertaining to service connection) (citing Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)).

There is no categorical rule that time delay between separation from service and onset of a disease inevitably weighs against service connection, or against the third McLendon requirement. And in
cases such as Mr. McCain’s, determining “whether the time lag between exposure to Agent Orange and development of [cancer] was consistent with the amount of time generally noted for [cancer] development” generally requires expert medical knowledge. Polovick v. Shinseki, 23 Vet.App. 48, 55 (2009) (Court faults medical opinion that did not address the amount of time generally required for brain tumor development); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (whether condition manifested itself in an unusual manner is a factor bearing discussion in VA examination reports).

In this case, the Board had no medical expert evidence as to the “time lag between exposure to Agent Orange and development” of his squamous cell carcinoma of the pharynx. Polovick, 23 Vet.App. at 55. The Board therefore had no basis to determine that the over-30-year period between separation and cancer manifestation weighed against Mr. McCain’s entitlement to a VA medical examination and opinion. R. at 8. Its conclusion in this regard amounts to an inappropriate medical assessment. See Colvin, Supra.

Designated for electronic publication only
NO. 12-0950

Before BARTLEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: U.S. Marine Corps veteran Daniel W. McCain appeals through counsel a December 16, 2011, decision of the Board of Veterans’ Appeals (Board), denying service connection for squamous cell carcinoma of the pharynx,1 claimed as due to herbicide exposure.2
This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For
the reasons set forth below, the Court will set aside the December 2011 Board decision and remand
the claim for additional development and readjudication consistent with this decision.
1The “pharynx” is “the musculomembranous passage between the mouth and posterior nares and the larynx and
esophagus.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1427 (32d ed. 2012). “Pharyngeal” is the adjective
meaning pertaining to the pharynx. Id.
2 The Board also referred a claim for an increased evaluation for service-connected post traumatic stress
disorder to the agency of original jurisdiction. Generally, the Court does not have jurisdiction over a referred claim.
See Link v. West, 12 Vet.App. 39, 47 (1998) (“Claims that have been referred by the Board to the [VA regional office]
are not ripe for review by the Court.”). But see Young v. Shinseki, 25 Vet.App. 201 (2012) (en banc order) (Court has
limited jurisdiction to review the propriety of referring rather than remanding a portion of a claim properly before the
Court). Because Mr. McCain raises no argument as to the propriety of the referral, the Court will not further consider
that matter.
Mr. McCain served on active duty from September1969 to October 1972, including service
in Vietnam. Record (R.) at 1272. The record includes private medical reports establishing that Mr.
McCain was diagnosed in 2006 with “[s]quamous cell carcinoma, left pharyngeal wall.” R. at 992,
1145, 1157.
In an October 5, 2006, report to Dr. Laurence Neufeld, Mr. McCain’s primary care physician,
Dr. Lawrence Hochman of the Florida Cancer Institute summarized a medical consultation and made
a recommendation for radiation treatment that the veteran subsequently underwent. R. at 992-94.
In a section of the report entitled “Social history,” Dr. Hochman noted that “[Mr. McCain] may have
had exposure to Agent Orange.” R. at 992.
In February 2007, Mr. McCain filed a claim for service connection for “carcinoma cancer
condition due to Agent Orange exposure.” R. at 1168. In an April 2007 rating decision, VA denied
this claim on the basis that “service connection for pharyngeal cancer is not a disability authorized
under the Agent Orange Act of 1991,” and there was no evidence that the cancer manifested in
service. R. at 1119.
Mr. McCain filed a timely Notice of Disagreement stating: “VA ignored [a] medical opinion
[in which] my doctor Laurence Neufeld, M.D. states in my health notes dated October 5, 2006, :
Social history–[‘the veteran] may have had exposure to Agent Orange’ [this] is in fact, [a] medical
opinion [that] was held by my medical examiner.” R. at 1113. VA continued its denial in a February
2008 Statement of the Case (R. at 1043-68), and Mr. McCain then perfected his appeal in March
2008. R. at 1016. In March 2009, VA issued a Supplemental Statement of the Case (SSOC), which
reiterated the conditions that had been presumptively linked to Agent Orange exposure and stated
that “the available scientific and medical evidence does not support the conclusion that [pharyngeal
cancer] is associated with herbicide exposure.” R. at 781.
In October 2009, Mr. McCain and his wife testified at a Board hearing. R. at 706-18. The
hearing testimony included the following exchange between Mr. McCain and his service
organization representative:
Q. But have doctors told you that this [cancer] is related to your exposure to Agent
Orange? What– give me–kind of elaborate about–
A. My Florida Cancer Institute . . . the doctor in there, which I wasn’t aware of
because I don’t remember ever talking to him about being in the military, but he
wrote in his findings that could be exposure to Agent Orange[.]
R. at 708-09. The veteran testified that during service in Vietnam he filled his canteen from streams
that passed through defoliated areas. R. at 715.
In a December 2009 decision, the Board remanded the claim for VA to obtain additional
treatment records. R. at 700-03. The remand order included the following:
Review of the Veteran’s testimony and contentions reveals that he asserts one of his
physicians has told him his pharyngeal carcinoma was likely caused by exposure to
Agent Orange or other herbicide used in Vietnam. He is advised that none of the
documentary medical evidence of record includes such a medical opinion, however.
Rather, the document to which the Veteran repeatedly refers contains only medical
history recorded by the physician that the Veteran may have had exposure to Agent
Orange. The physician does not opine that the Veteran’s cancer was caused by such
exposure. This is a critical distinction, as such a medical opinion would indeed help
the Veteran’s case. At this point in time, however, no such medical opinion is
contained in the evidence of record.
Because the VA presumes that he was in fact exposed to herbicides during the course
of his service in Vietnam, proof of exposure to herbicides is not the issue in this case.
Rather, it is the cause of his cancer which has not been established. A veteran may
establish service connection with proof of actual direct causation. Thus, the Veteran
is hereby informed that if his physician does, in fact, believe as a medical matter, that
his pharyngeal cancer was caused by exposure to herbicides, he should submit a
written report to that effect.
R. at 702 (citations omitted).
In November 2011, the veteran’s lay representative submitted a “post-remand written brief
reply” arguing that Mr. McCain is entitled to a VA examination and opinion “as to whether the
veteran’s squamous cell carcinoma is as likely as not due to the veteran’s consistent sun exposure
and/or chemical exposure in Vietnam.” R. at 17. The representative quoted medical information
from the Lahey Clinic as follows:3
According to the Lahey Clinic, [“]exposure to ultaviolet (UV) light through time
spent in the sun is known as the primary cause of squamous cell carcinoma.
It is unclear from the r 3 ecord before the Court whether the original Lahey Clinic document was submitted to
the Board.
However, the growth results from a combination of sun exposure and genes that
make developing the cancer more likely. Squamous cell carcinoma can also grow
where the skin has been damaged by a burn, a long-standing wound, been exposed
to certain chemicals, or been exposed to radiation.” This is consistent with the
veteran’s military service, more so in regards to his time served in Vietnam.
R. at 17.
In the decision here on appeal, the Board made two principal findings of fact: (1) The veteran
is presumed to have been exposed to herbicides, such as Agent Orange; and (2) “[s]quamous cell
carcinoma is not a disease shown to be associated with exposure to herbicides, including Agent
Orange, and is not otherwise related to the Veteran’s period of active service.” R. at 4. The Board
further found that the preponderance of evidence was against the claim. R. at 14.
Preliminarily, the Board stated: “In this case, a VA examination has not been provided and
the Board finds that one is not warranted.” R. at 8. The Board noted that squamous cell carcinoma
has not been presumptively linked to Agent Orange exposure and that Mr. McCain’s cancer did not
manifest until nearly 35 years after service, and reasoned: “Given this long period of time between
the Veteran’s active service and the onset of squamous cell carcinoma, the Board finds that there is
no indication that squamous cell carcinoma may be related to service based on the evidence of
record.” Id.
In weighing the medical evidence, the Board stated that “the October 2006 treatment record
from the Florida Cancer Institute,” which the Board described as containing “Dr. Neufeld’s notation
of a history of Agent Orange exposure . . . did not state or even imply that the Veteran’s Agent
[Orange] [e]xposure might be related to the development of squamous cell carcinoma.”4 R. at 12-13.
The Board also stated that, in multiple notices VA has indicated that “a positive association has not
been shown between herbicide exposure and cancers of the pharynx,” and found these notices “based
on . . . a comprehensive review of scientific evidence, to be highly probative evidence weighing
against a relationship between the Veteran’s squamous cell carcinoma of the pharynx and exposure
4 The Board decision contains several inaccurate references as regards the October 2006 Hochman report. For
example, the Board attributed Dr. Hochman’s October 2006 report to Dr. Neufeld. R. at 12. Later in the decision, the
Board stated that the Secretary’s Agent Orange notices outweigh “the June 2007 private treatment record.” R. at 13. The
record on appeal contains no private treatment record dated in June 2007 and the Court will construe this reference to
be to the October 2006 Hochman report.
to Agent Orange.” R. at 13. The Board therefore found that “the preponderance of the evidence
weighs against a relationship between the Veteran’s squamous cell carcinoma and his presumed
exposure to herbicides during active service.” Id. This appeal followed.
Mr. McCain argues that VA failed to fulfill its duty to assist by declining to furnish a VA
medical examination with respect to his pharyngeal cancer claim and by failing to explain adequately
why one was not provided. Appellant’s Brief (Br.) at 6-11. This Court has held that in disability
compensation claims
the Secretary must provide a VA medical examination when there is (1) competent
evidence of a current disability or persistent or recurrent symptoms of a disability,
and (2) evidence establishing that an event, injury, or disease occurred in service or
establishing certain diseases manifesting during an applicable presumptive period for
which the claimant qualifies, and (3) an indication that the disability or persistent or
recurrent symptoms of a disability may be associated with the veteran’s service or
with another service-connected disability, but (4) insufficient competent medical
evidence on file for the Secretary to make a decision on the claim.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). The Board
must provide a statement of reasons or bases for a determination that a medical examination is not
necessary. Duenas v. Principi, 18 Vet.App. 512, 517 (2004). In addition to that specific reasons-orbases
requirement, the Board must more generally provide an adequate statement of reasons or bases
for its findings on all material issues of fact and law presented. See 38 U.S.C. § 7104(d)(l); Gilbert
v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this general reasons-or-bases
requirement, the Board must analyze the credibility and probative value of the evidence, account for
the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any
material evidence favorable to the claimant. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s
statement “must be adequate to enable a claimant to understand the precise basis for the Board’s
decision, as well as to facilitate review in this Court”); Caluza v. Brown, 7 Vet.App. 498, 507 (1995);
Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
As to the first McLendon requirement, the Board did not dispute that Mr. McCain has
squamous cell carcinoma of the pharynx. See R. at 718 (hearing officers’s statement during hearing:
“There [is] no question that he has the cancer.”). As to the second McLendon requirement, the Board
made a formal finding that the veteran is presumed to have been exposed to herbicides, which
constitutes an in-service event, satisfying this requirement. R. at 4. However, the Board found that
the third McLendon requirement, “an indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran’s service or with another serviceconnected
disability,” was not met.
In so concluding, the Board asserted that there was no indication that squamous cell
carcinoma may be related to herbicide exposure. R. at 8. The Board further relied on the fact that
“there is no positive association between exposure to herbicides and any other condition for which
the Secretary has not specifically determined a presumption of service connection is warranted.” Id.
(citing 72 Fed. Reg. 32,395, 32,397-98 (June 12, 2007)). Finally, the Board stated that the long
period between Mr. McCain’s service and the onset of his squamous cell carcinoma weighed against
a conclusion that there is an “indication” that the condition “may be related” to service. Id. As
described below, this analysis fails to provide adequate reasons or bases for the conclusion that the
veteran is not entitled to a VA medical examination and opinion.

Because of the Board’s incomplete discussion of the evidence relating to whether squamous
cell carcinoma may be associated with the veteran’s presumed exposure to Agent Orange, and its
reliance on its own medical opinion, the Court concludes that the statement of reasons or bases
supporting denial of a VA medical examination is inadequate. The Court will therefore set aside the
Board’s decision and remand the matter for further proceedings consistent with this decision. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where
the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
The Court need not reach the balance of Mr. McCain’s arguments. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”).

Upon consideration of the foregoing, the December 16, 2011, Board decision denying service connection for squamous cell carcinoma of the pharynx is SET ASIDE and the case is REMANDED for readjudication consistent with this opinion.
In pursuing his case on remand, Mr. McCain will be free to submit additional evidence and argument in support of his claim and the Board must consider any such evidence and argument. See
Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court notes that the Board and VA have a duty
to provide expeditious treatment to any case remanded from this Court. 38 U.S.C. § 7112; 38 C.F.R.
§ 20.900(d) (2013). A final Board decision following the remand herein ordered will constitute a
new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of
Appeal with the Court not later than 120 days after the date on which notice of the Board’s new final
decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: August 2, 2013
Copies to:
Michael L. Smith, Esq.
VA General Counsel (027)

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