Citation Nr: 1219783 Decision Date: 06/06/12 Archive Date: 06/20/12 DOCKET NO. 09-16 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her daughter. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967 and from November 1967 to August 1985. He died in May 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Phoenix, Arizona, which denied service connection for the cause of the Veteran's death. In March 2012 the appellant and her daughter testified during a Travel Board hearing at the RO before the undersigned Veterans Law Judge. 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 asserts entitlement to service connection for the cause of the Veteran's death on the basis that the cause of his death was related to or had its onset in service. As reflected in the appellant's April 2008 notice of disagreement and testimony at the March 2012 Travel Board hearing, she asserts that during service the Veteran was exposed to the herbicide Agent Orange, which resulted in the cause of the Veteran's death. The Veteran's certificate of death reflects that lymphoma was the immediate cause of his death, and medical records prior to his death show that the lymphoma was diagnosed as non-Hodgkin's lymphoma. The appellant asserts that the Veteran was exposed to herbicides while stationed in Thailand during the Vietnam Era, and during day trips from there into Vietnam, and that this exposure caused the non-Hodgkin's lymphoma, which is shown to have ultimately caused his death. If a veteran was exposed to an herbicide agent during active military service, certain diseases including non-Hodgkin's lymphoma will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including the herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. In this case the service personnel records do not verify that the Veteran had service in Vietnam so as to rely solely on this presumption of exposure to herbicides in service. In any event, the claim must still be reviewed to determine if service connection can be established on a basis without benefit of that presumption. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To this end, the RO attempted to verify service in Vietnam and to verify exposure to herbicides in Thailand, but received a response that Vietnam in-country service of the Veteran could not be determined. An October 2010 Deferred Rating Decision shows that the RO determined that the Veteran's service personnel files showed service in Thailand, but not Vietnam, and that the Veteran was not in a military occupation requiring duties placing him in proximity to Agent Orange in Thailand. The RO requested that the Compensation and Pension Service (C&P Service) provide a memorandum for the record consistent with M21-1MR IV.ii.2.C.10, and take any other necessary action. The claims file contains a memorandum for the record from the Compensation and Pension Service (C&P Service) in response, showing that C&P Service reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense, and then discussed findings pertinent to the Veteran's service in Thailand. The memorandum reflects that the review did not confirm that herbicides were used as alleged, and C&P Service recommended that the RO make a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information that organization could provide to corroborate the Veteran's claimed exposure in Thailand and Vietnam. The M21-1MR manual provides guidelines for verifying exposure to herbicides outside of Vietnam. It provides for the above procedure as executed by C&P Service. The manual also provides that if the review does not confirm that herbicides were used as alleged, then the RO is to submit a request to JSRRC for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, 2.C.10.p. Review of the claims file reflects that this last part of the procedure for verification of exposure to herbicides was not applied in the case of the Veteran's claim. Evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). As such, the Board finds that the RO must develop the claim in a manner consistent with the above provisions. The claim must also be reviewed to determine if service connection for the cause of the Veteran's death can be established on a direct basis without benefit of the presumptions offered under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, during the Veteran's lifetime, service connection was in effect for certain chronic conditions, including duodenal ulcers, with gastric polyp removed; herpes, type II, scrotal; degenerative joint disease of the cervical spine with mild paresthesias of the left upper extremity; a left ear hearing loss; and bilateral non-specific conjunctivitis, old buried foreign bodies, left cornea. These service-connected disabilities should be taken into account in deciding whether a service-connected disability caused or substantially or materially contributed to the Veteran's death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In particular, the record reflects treatment over many years for recurring duodenal ulcers, with gastric polyps. Also, VA treatment records show continuing treatment for herpes symptoms during the Veteran's lifetime in recent years before his death. Particularly for both of these two service-connected disabilities, duodenal ulcers, with gastric polyp removed, and herpes, type II, scrotal, an opinion is necessary as to the likelihood that either or both of these disabilities in combination constituted a contributory cause of death: that is, they either contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. An opinion is also necessary as to the likelihood that any service-connected disability caused the recognized disease that resulted in death, lymphoma (non-Hodgkin's lymphoma). In this regard the Board notes that VA treatment records in the 1980s show assessments of recurrent peptic ulcer disease, and gastric polyp with biopsy findings of hyperplastic polyp and cystic change. An opinion is necessary as to the likelihood of an etiological relationship between the service-connected duodenal ulcers or herpes, type II, and the development of non-Hodgkin's lymphoma. In sum, the RO should arrange for the claims file to be provided to an examiner with a request that he or she provide an opinion based on the record, as to the likelihood that the Veteran's service-connected disabilities alone or in combination caused or substantially or materially contributed to his death. Accordingly, the case is REMANDED for the following action: 1. Consistent with the M21-1MR manual provisions for verifying exposure to herbicides in locations other than Vietnam or along the Demilitarized Zone in Korea, follow all mandated provisions not yet accomplished to attempt to verify exposure to herbicides as alleged by the appellant. Specifically include submission of a request to JSRRC for verification of the Veteran's asserted exposure to herbicides while serving in Thailand. Also, invite the appellant to submit evidence, including statements from anyone familiar with the Veteran's travels from Thailand into Vietnam, to confirm service in Vietnam on day trips as alleged, or otherwise. 2. Thereafter, and after conducting any other necessary development, refer the claims files to an appropriate medical professional, in order to obtain an opinion as described below. Notify the examiner that the certificate of death listed the Veteran's immediate cause of death as lymphoma; with no other significant conditions contributing to death identified. Notify the examiner that other medical evidence on file identifies the lymphoma as non-Hodgkin's lymphoma. Notify the physician that prior to the Veteran's death, the following were his service-connected disabilities: (1) duodenal ulcers, with gastric polyp removed; (2) herpes, type II, scrotal; (3) degenerative joint disease of the cervical spine with mild paresthesias of the left upper extremity; (4) left ear hearing loss; and (5) bilateral non-specific conjunctivitis, old buried foreign bodies, left cornea. The examiner should review the claims files, and then provide an opinion as to a) whether it is at least as likely as not that the Veteran's service-connected disabilities contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death; and b) whether it is at least as likely as not that the Veteran's service-connected disabilities of duodenal ulcers and/or scrotal type II herpes, caused the Veteran to develop non-Hodgkin's lymphoma. The rationale for any opinions expressed should be provided. 3. Then the RO should readjudicate the appeal. If a benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the appellant an opportunity to respond. Then the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).