Citation Nr: 1446959 Decision Date: 10/23/14 Archive Date: 10/30/14 DOCKET NO. 10-47 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for renal cell carcinoma, for accrued benefits purposes. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD), for accrued benefits purposes. 4. Entitlement to service connection for residuals of a head injury manifested by memory loss, claimed as traumatic brain injury (TBI), for accrued benefits purposes. 5. Entitlement to service connection for a bilateral ankle disability, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 6. Entitlement to service connection for a bilateral knee disability, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 7. Entitlement to service connection for a bilateral wrist disability, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 8. Entitlement to service connection for upper gastrointestinal disorder, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 9. Entitlement to service connection for rib fractures, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 10. Entitlement to service connection for a skull disability, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 11. Entitlement to service connection for erectile dysfunction, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 12. Entitlement to service connection for splenectomy, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 13. Entitlement to service connection for hypertension, to include as secondary to renal cell carcinoma, for accrued benefits purposes. 14. Entitlement to service connection for a low back disorder for accrued benefits purposes. 15. Entitlement to service connection for nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and E.D. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1983 to June 1996 and from October 2003 to March 2005. The Veteran also had more than seven years and six months of service in the Army Reserves. This matter comes before the Board of Veterans' Affairs (Board) on appeal from a June 2009 decision by the RO which, in part, denied the benefits sought on appeal. A videoconference hearing before the undersigned member of the Board was held in April 2013. At the hearing, it was argued that the Veteran suffered from PTSD and depression prior to his death, and that she was seeking service connection for his psychiatric problems, including depression and PTSD. Indeed, the Veteran's October 2008 application showed that he was seeking service connection for PTSD and depression. Accordingly, the issue on appeal has been restated to reflect the appropriate adjudicatory considerations of the appellant's claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran had active service in the Regular Army from November 1983 to June 1996, and was recalled to active service from the Army Reserves and served in Iraq from October 2003 to March 2005. His military occupation specialty (MOS) was a water treatment specialist during his first period of active service, and as a motor transport operator (88M) while serving in Iraq during his second period of active service. The Veteran was diagnosed with renal cell carcinoma in August 2008, and died in February 2009. The cause of death was renal cell carcinoma. Because the Veteran had periods of service in the Regular Army and in the Army Reserves, it is important to note the distinctions for each type of military service. The term "active service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c). INACDUTRA includes duty (other than full-time duty) prescribed for Reserves. 38 C.F.R. § 3.6(d). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Appellant contends that the Veteran's fatal renal cell carcinoma was due to exposure to various toxic chemicals in the performance of his duties during service. Specifically, that the Veteran's duties as a water treatment specialist; according to military technical manuals submitted by the appellant, would have exposed him to various toxic chemicals while performing his regular duties. It was also argued that the Veteran would have been exposed to burning oil fields and feces, etcetera, and possibly other toxic chemicals, such as, chlorine from IEDs while on deployment to Iraq. The representative testified that the Veteran's cancer metastasized to various joints, including his knees, ankles, wrists and skull, and affected other organs including his spleen and upper gastrointestinal system, caused his erectile dysfunction and hypertension, and fractured his ribs. At the hearing in April 2013, the representative noted that service treatment records (STRs) in January 2001, showed a small nodule in his neck and an unidentified mass in his stomach, the latter of which was treated as a parasitic infection, but that the stomach mass was not fully evaluated. The representative asserted that the STRs were "flooded with symptoms" throughout his military service, that were similar to the ones he experienced after his cancer was diagnosed, and that his chronic symptoms could have been the initial manifestations of the later diagnosed renal cancer. The representative also noted that a private physician opined that the size of the tumor when first discovered suggested that it was likely that it had been there for "years." (See October 2008 private statement). Concerning the claim for a psychiatric disorder, the representative asserted that the Veteran reported seeing dead bodies and was in fear for his life on a post-deployment assessment in January 2005, and that he later reported experiencing nightmares and depression, but was never fully evaluated for PTSD due to being treated for his cancer. Regarding the claim for TBI, the appellant testified that the STRs showed the Veteran injured his head once in service. The appellant was not sure whether this one incident would have caused his memory loss, but believed that the injury or his cancer was the underlying cause of the Veteran's memory loss. Unfortunately, the Veteran was unable to report for a scheduled VA examination prior to his death because he was undergoing treatment for his cancer and died before he could be evaluated by VA. However, given the facts in this case concerning the Veteran's military duties as a water treatment specialist and his service in Iraq, the Board finds that an opinion is warranted in this case. In the Veteran's October 2008 application for compensation benefits he contended that he was also entitled to service connection for a low back disorder. This issue was never addressed by the RO and so remained pending at the time of his death. Accordingly, the issue must be adjudicated by the AMC in the first instance. Finally, with respect to the claim for death pension benefits, the Appellant submitted additional financial records to the undersigned at the videoconference hearing in April 2013. Following the development of the other issues on appeal, the AMC should readjudicate the claim for death pension. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to ascertain whether or not (and if so, to what extent) the Veteran's duties as a water treatment specialist would have exposed him to the toxins/chemicals alleged by the Appellant in materials submitted in April 2013. See (i) Water Treatment Specialist job description, (ii) Health Effects of Toxic Chemicals article, (iii) Material Safety Data Sheets on Ammonium Chloride, Calcium Carbonate, Hydrazine Sulfate, Hydroxylamine Hydrochloride, Phenolphthalein TS, and Platinum Cobalt Color Standard, APHA 500, and (iv) Departments of the Army and the Air Force manual on Water Supply, Water Treatment including Part C-4, Minimum Laboratory Chemicals for Military Water Treatment Plants, and Table C-3. When the development is completed, the RO/AMC should make a finding regarding the nature and extent of such exposures that are substantiated. 2. After securing any necessary authorization from the Appellant, the AMC should contact the private medical doctor who rendered the October 2008 opinion. The doctor should be asked to clarify his statement that the Veteran's renal tumor had likely been present "for years." The doctor should be asked if it is at least as likely as not (50 percent or greater probability) that the Veteran's renal cell carcinoma had its onset during his active service from November 1983 to June 1996, or his service from October 2003 to March 2005. The doctor should be requested to provide a full explanation for the opinion rendered, and include notation of the facts, medical evidence, and/or medical principles used to reach the opinion. 3. The AMC should take appropriate action to have the claims file and a copy of this remand forwarded to appropriate VA examiners for opinions as to the nature and etiology of the claimed disabilities on appeal. The examiners must review the claims file and include a notation in their reports, that this record review took place. The examiners should provide an opinion on the following questions: (A)(1) Is it at least as likely as not that the Veteran's renal cell carcinoma is etiologically due to his active service from November 1983 to June 1996, or his service from October 2003 to March 2005 due to exposure to toxins/ chemicals during the performance of his military occupational specialty of water treatment specialist and/or due to his exposure to improvised explosive devices, rockets, and mortars during his service in Iraq? (2) If so, is it at least as likely as not that the renal cancer metastasized to any other body part, including his ankles, knees, wrists, skull, ribs, and upper gastrointestinal system, or caused erectile dysfunction, splenectomy or hypertension? The examiner should describe any residual disability of the affected body part due to any metastasized cancer. (B)(1) Is it at least as likely as not that the Veteran had symptomatology that satisfied the required criteria under DSM-IV for a diagnosis of PTSD or any other psychiatric disorder, as defined under 38 C.F.R. § 4.125 prior to his death? The examiner is advised that the Veteran's claimed stressors of exposure to improvised explosive devices, rockets, and mortars during his service in Iraq is sufficiently corroborated. (2) If the Veteran met the criteria for a diagnosis of PTSD, the examiner is directed to ascertain whether the corroborated stressors were adequate to support the DSM-IV diagnosis of PTSD and whether the Veteran's symptoms were related to the claimed stressors. (3) If the Veteran met the criteria for any other psychiatric disorder prior to his death, is it at least as likely as not that the identified disorder is etiologically related to his service from November 1983 to June 1996, or his service from October 2003 to March 2005? The examiner must address whether it is at least as likely as not that the Veteran presented the prodromal signs of any diagnosed psychiatric disorder, other than PTSD during service. (C) Is it at least as likely as not that the Veteran had residuals of a head injury including memory loss that was related to any incident in service, prior to his death? (D) Is it at least as likely as not that the Veteran had a disability of the ankles, knees, wrists, skull, ribs, or upper gastrointestinal system, and had erectile dysfunction, hypertension, or a disability of the spleen that was manifested in or was otherwise related to service, prior to his death? A fully articulated medical rationale for any opinions expressed must be set forth in the examination reports. The examiners should discuss the particulars of the Veteran's medical history and the relevant medical science as applicable to these claims. If the examiners are unable to render an opinion without resorting to speculation, this should be explained. In so doing, the examiners should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the examiner(s) for completion of the opinion(s)), or state whether the inability to provide the opinion is based on the limits of medical knowledge. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Adjudicate in the first instance the Veteran's claim for service connection of a low back disorder, which was pending at the time of his death but not adjudicated by the RO in the February 2009 and June 2009 rating decisions. 5. After the requested development has been completed, the AMC should readjudicate the Appellant's claim, to include the claim for death pension. If the benefits sought on appeal remain denied, the appellant and her representative must be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ TANYA SMITH 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).