Citation Nr: 1140323 Decision Date: 10/31/11 Archive Date: 11/07/11 DOCKET NO. 09-19 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, L. Price ATTORNEY FOR THE BOARD C. R. dela Rosa INTRODUCTION The Veteran had active military service from February 1968 to September 1969, and from January 1979 to May 1979. He died in February 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2011 a Travel Board hearing was held before the undersigned Veterans Law Judge. The transcript of that hearing is of record. Evidence was submitted directly to the Board with a waiver of agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304. However, as the case must be remanded, the RO will have an opportunity to review this evidence. 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 The appellant seeks compensation as the Veteran's surviving spouse on the grounds that the Veteran died of respiratory failure caused by pharyngeal cancer or a soft tissue sarcoma that was related to his exposure to Agent Orange. At the time of his death the Veteran was service-connected for posttraumatic stress disorder (PTSD) rating at a 70 percent disability rating. He was also assigned a total disability rating based on individual unemployability due to service-connected disability (TDIU). The Certificate of Death reflects that the Veteran died on February [redacted], 2008, at the age of 58; respiratory arrest was certified as the immediate cause of death, and pharyngeal cancer was listed as the underlying cause of death. The death of a veteran will be considered as having been due to a service-connected disability if the evidence establishes that such disability was either a principal or a contributory cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). An appellant may also satisfy the requirements of 3.312 if the evidence shows that the veteran was entitled to service connection for the disorder that caused or was the contributory cause of death. Service connection will be granted if it is shown that the veteran suffered from a disability contracted in the line of duty while in active military service. 38 C.F.R. §§ 3.303, 3.304. Some chronic diseases, such as malignant tumors, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The Board notes that the following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). However, a presumption of service connection based on exposure to herbicides is not warranted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 68 Federal Register 27630-27641 (May 20, 2003). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service, or is proximately due to or the result of a service-connected disability. 38 C.F.R. §§ 3.303(d), 3.310(a). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2011). Pertinent case law provides, however, that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the appellant is required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). A June 2011 letter from a VA physician, B.M., M.D., notes that the Veteran was undergoing treatment for squamous cell carcinoma of the tongue but died of his disease. The physician went on to state that the Veteran was noted to have a possible exposure to Agent Orange while in Vietnam and that the disease involved the aerodigestive tract which may have a relation to Agent Orange exposure. The Board notes that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). However, the opinion is sufficient to warrant a medical opinion pursuant to VA's duty to assist pursuant to 38 U.S.C.A. § 5103A(a). In addition, the appellant submitted a letter from J.W., M.D., which indicates that the list of malignancies with a recognized association with Agent Orange includes laryngeal and tracheal tumors but not cancers of the tongue. He went on to state that "the identity of tongue cancer microscopically as well as the geographic proximity to the 'approved' tumors makes [the] request for disability determination very appropriate." The death certificate indicates that the Veteran died in February 2008, however, the record does not include terminal hospital records. During the April 2011 Board hearing, the appellant reported that the Veteran received his medical care at West Palm Beach VA Medical Center. In order to ascertain whether the Veteran's death was caused by a service-connected disability or whether the Veteran was entitled to service connection for the disorder that caused or was the contributory cause of death, the matter must be remanded for acquisition of all final treatment records. 38 C.F.R. § 3.159(c). In light of the assertions made by the appellant a VA medical opinion should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following action: 1. Obtain VA medical records pertaining to the Veteran that date from 2006 until the Veteran's death in February 2008. 2. After the above step has been performed, forward the Veteran's claims file for review to an appropriate VA examiner. The examiner should indicate in the medical opinion that the claims folder was reviewed. The appellant asserts that the Veteran died from a cancer that was related to presumed Agent Orange exposure in service. The examiner should address whether the Veteran died from a respiratory cancer (cancer of the lung, bronchus, larynx, or trachea) or a soft-tissue carcinoma. If not, is it at least as likely as not (50% or greater probability) that the proximate cause of the cancer that resulted in the Veteran's death was his presumed exposure to Agent Orange in service. The practitioner's attention is directed to the statements of VA physicians B.M., M.D., and J.W., M.D., and the reference literature provided by the appellant. A complete rationale, which may include references and citations to medical literature, should be provided for each opinion. 3. The RO/AMC should then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. Then readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response 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. 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. 2011). _________________________________________________ S. S. TOTH 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) (2011).