Citation Nr: 1300299 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-15 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.C. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to July 1979. He died in December 2008. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, which denied service connection for the cause of the Veteran's death, and a May 2009 letter from the St. Petersburg RO, which denied entitlement to burial benefits. In June 2009, the appellant submitted a notice of disagreement and subsequently perfected her appeal in April 2010. In December 2011, the appellant presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claims of entitlement to service connection for the cause of the Veteran's death and burial benefits. The Veteran's death certificate lists his cause of death as cecal mass with hepatic metastasis. Exposure to Agent Orange as a significant condition that contributed to the cause of death. Notwithstanding the death certificate, a December 2011 letter from the Veteran's private physician (S. Naoumoff, M.D.) indicates that his actual cause of death was the result of his long-standing diabetes mellitus, which was complicated by coronary artery disease. He explained that the Veteran was hospitalized at Cape Canaveral Hospital with an acute myocardial infarction and heart failure in November 2008, and that he eventually died (less than a month later) as a result of that event. Dr. Naoumoff said that the hepatic cancer was discovered during his November 2008 hospitalization and was ultimately an incidental finding. He added that he was out of the country at the time of the Veteran's death, and that the physician who completed the certificate of death was unfamiliar/unaware of the particulars of the Veteran's health. Records from Dr. Naoumoff document that he treated the Veteran for both diabetes mellitus and coronary artery disease. The Veteran's past medical history also shows that he suffered myocardial infarctions in 2002 and 2005 that corresponded in cerebrovascular accidents. A stent placement was performed in 2002. He underwent a coronary artery bypass graft in April 2005. As the Veteran served in the Republic of Vietnam, he was presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Ischemic heart disease, including coronary artery disease, and diabetes mellitus are both conditions presumed to be related to Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2012). However, the claims file is negative for any treatment records from Cape Canaveral Hospital during the period immediately prior to the Veteran's death, which would lend credence to the statement provided by Dr. Naoumoff. In order to evaluate the probative value of the private physician's opinion, the Board must review these records. A remand to attempt to obtain these records is necessary. Additionally, the duty to assist includes obtaining a medical opinion when it is necessary to make a decision on a claim. With regard to cause of death claims, the duty to assist requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). After obtaining any available treatment records from Cape Canaveral Hospital, a VA medical opinion should be obtained to address the cause of the Veteran's death. With regard to the appellant's claim of entitlement to burial benefits, the Board notes that the readjudication of her claim for service connection for the cause of the Veteran's death may impact this claim. Therefore, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, following the development and readjudication of the appellant's cause of death claim, the AMC must readjudicate her claim for burial benefits. Accordingly, the case is REMANDED for the following actions: 1. Contact the appellant and ask her to provide a signed release of information for treatment records from the Cape Canaveral Hospital for treatment received by the Veteran in the two months prior to his death, as well as any other facilities or treatment providers that are relevant to the appellant's claim. Additional records from Dr. Naoumoff from November and December 2008 should also be requested. If the appellant returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 2. After completion of the above, the claims file should be sent to an appropriate VA physician to provide an opinion on the cause of the Veteran's death. The physician must review the entire claims file, including the death certificate, a March 2007 medical abstract relating diabetes mellitus to pancreatic cancer, and the December 2011 opinion from Dr. Naoumoff. That such a review was conducted must be noted in the opinion. The physician should provide an opinion as to whether it is as likely as not that the Veteran's Type II diabetes mellitus or coronary artery disease was a principal (primary) or contributory (contributed materially or substantially) cause of the Veteran's death. Please address Dr. Naoumoff's statement that the Veteran's hepatoid adenocarcinoma was an "incidental finding" and not the cause of the Veteran's death as stated by the certificate of death, and that his diabetes mellitus and coronary artery disease were the principal causes of death. The physician should also state whether it is as likely as not that the Veteran's diabetes mellitus caused or aggravated his hepatic cancer. Further, the physician should comment on whether it is at least as likely as not that the Veteran's presumed herbicide exposure caused or aggravated his cecal mass, hepatic metastasis, or any other identified cause of death. It would be helpful if the physician would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for the cause of the Veteran's death should be readjudicated. Thereafter, the claim of entitlement to burial benefits should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the appellant and her representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2012).