Citation Nr: 0813958 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 02-17 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her two brothers ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1975. He died in September 1986. The appellant is the widow of the veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2002 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina, which determined that new and material evidence had not been received to reopen the claim for service connection for the cause of the veteran's death. The RO subsequently determined that new and material evidence had been received to reopen the appellant's claim and then denied the claim for service connection for the cause of the veteran's death on the merits. The appellant subsequently filed a timely appeal. In July 2004, the appellant testified before the undersigned Veterans Law Judge at a hearing at the Central Office in Washington, D.C. A transcript of that hearing is of record. In a December 2004 decision, the Board reopened the appellant's claim for service connection for the cause of the veteran's death and remanded it to the RO for additional development, to include obtaining additional relevant medical records. By a March 2006 decision, the Board denied the appellant's claim for service connection for the cause of the veteran's death. The appellant appealed the March 2006 decision to the United States Court of Appeals for Veterans Claims (Court). While this case was pending before the Court, the Office of General Counsel for VA, on behalf of VA, and the appellant, by and through her attorney, filed a Joint Motion for Remand (Joint Motion), dated in December 2007. In an Order, dated in December 2007, the Court granted the Joint Motion, vacated the Board's March 2006 decision, and remanded the case, pursuant to 38 U.S.C. § 7252(a), for compliance with the directive stipulated in the Joint Motion. Copies of the Court's Order and the Joint Motion have been placed in the claims file. In April 2008, the veteran, through her attorney- representative, submitted additional evidence and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As set forth in the December 2007 Joint Motion, in the December 2004 decision, the Board reopened and remanded the appellant's claim for service connection for the cause of the veteran's death. The Board's remand instructions included remand orders that the RO should contact Forsyth Memorial Hospital in Winston-Salem and request all inpatient records from September 1985, October 1985, February 1986, and September 1986. The instructions further stated that the RO had to make every reasonable effort to obtain relevant, nongovernmental records the claimant had adequately identified. In the Joint Motion, the parties noted that the evidence of record at the time of the Board's December 2004 remand decision already included records from the Forsyth Memorial Hospital, dated from September 1985 to September 1986. However, in a letter from the appellant, received in June 2002, the appellant stated that the veteran had stayed at the Forsyth Memorial Hospital on "October 29, 1984, December 12, 1984, March 9, 1985, August 9, 1985, September 14, 1985, September 30, 1985, November 1985, February 2, 1986, September 14, 1986, and September 27, 1986, the date of his death." According to the Joint Motion, nowhere in the claims file or the corresponding record on appeal was there any medical records from the Forsyth Memorial Hospital for the period of time from October 1984 to August 1985. Thus, the parties concluded that the RO had not obtained all records identified by the appellant and that a remand was necessary to enable compliance with the Board's December 2004 remand instructions; specifically that the RO must make every reasonable effort to obtain relevant, nongovernmental records the claimant had adequately identified. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The veteran's death certificate shows that he died in September 1986, at the age of 50. The listed immediate cause of death was pneumocystis carinii pneumonia (PCP) which caused fulminant respiratory failure and was a result of acquired immune deficiency syndrome (AIDS). In this case, the appellant contends that the test results showing that the veteran had AIDS was in reality a false positive and that he did not have AIDS. Thus, the appellant maintains that the veteran's fatal respiratory illness was not due to AIDS but rather, was due to his Agent Orange exposure during service in Vietnam. In support of her contention, the appellant has submitted a private medical statement from A.A., M.D., received in April 2008. In the statement, Dr. A. reported that the test used to diagnose the veteran with AIDS, HTLV-3, was in the first generation of HIV-1RNA antibody testing which became available in 1985. Testing at that time was in its infancy and sensitivity and specificity of testing in 1985 was extremely low compared to today's standards. According to Dr. A., the HTLV-3 test which was used for the veteran in 1985 was no longer in use. Dr. A. reported that it was also known that exposure to Agent Orange (dioxin) had a profound effect on the immune system, particularly related to abnormal T-cell function. Dr. A. indicated that because dioxin affected T-cell mediated immunity, it had the potential to have numerous immunosuppressive manifestations, similar to HIV which also caused problems with T-cell immunity. The veteran clearly suffered from some form of immunosuppression. It was Dr. A.'s opinion that because of the veteran's low exposure risk and the lack of highly specific and sensitive testing for HIV in 1985, it was more likely that the veteran's immunosuppression which led to his death was caused by his dioxin exposure rather than AIDS. The Board has considered obtaining a Veterans Health Administration (VHA) opinion to address the appellant's contentions reported above. However, pursuant to the December 2007 Joint Motion, given that there is indication that there may be additional relevant private medical records that have not been obtained, such a request will be deferred pending the completion of the development as outlined below. Therefore, in accordance with the Joint Motion, this case is remanded to the RO for the following actions: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should contact Forsyth Memorial Hospital in Winston-Salem and request all inpatient treatment records from October 1984 to August 1985. The RO must make every reasonable effort to obtain relevant, nongovernmental records the claimant has adequately identified. If the RO is unable to obtain such records, it must provide notice to the claimant in accordance with 38 C.F.R. § 3.159(e). 3. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record since the last supplemental statement of the case (SSOC), the RO must re-adjudicate the appellant's claim for service connection for the cause of the veteran's death. If the claim remains denied, the RO should issue an appropriate SSOC and provide an opportunity to respond. 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. 2007). _________________________________________________ R. F. WILLIAMS 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) (2007).