Citation Nr: 1301545 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-26 638 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to March 1985. He died in October 2006. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by which the RO denied entitlement to the cause of the Veteran's death. The appellant requested a hearing before a Veterans Law Judge. A hearing was scheduled to take place in Washington, DC in October 2012. In a September 2012 signed statement, the appellant indicated that she would not be attending the hearing. Accordingly, the Board will proceed with consideration of the appellant's claim based on the evidence of record. See 38 C.F.R. § 20.704(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 A remand is required in this case to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). To decide the claim of entitlement to service connection for the cause of the Veteran's death, the Board must ensure that the record is complete to the extent possible. 38 C.F.R. § 3.159(c)(1). The Veteran died in October 2006. Following his death, an autopsy was conducted by the University of Virginia Health System, and his brain was further evaluated by University of Maryland Medical Center pathologists. The record contains a copy of the pathology report completed in February 2007. There is no copy of the autopsy report, however. Indeed, regarding the autopsy report, the record contains only an April 2007 letter to the appellant from the University Of Virginia Health System indicating that the results of the autopsy were sent to J. Stewart, M.D. of Chesapeake, Virginia. Because the autopsy results are highly relevant to the issue of entitlement to service connection for the cause of the Veteran's death, the RO must make all required efforts to obtain it from the University of Virginia Health System and from Dr. Stewart. The Veteran's death certificate reflects that he died of Creutzfeldt-Jakob disease (CJD). The RO arranged for a VA medical opinion regarding the cause of the Veteran's death, which indicated that the Veteran's fatal CJD was not due to exposure to tainted meat behind enemy lines, as the Veteran was only behind enemy lines for a very short time in 1970 until he was rescued. However, according to E. Goldberg, M.D., the Veteran's treating physician, the Veteran could have been exposed to tainted meat during service in countries such as Vietnam, Cambodia, Philippines, Thailand, and Japan. Indeed, the record reflects that the Veteran's aircraft was struck down in Vietnam. It is unclear where else he served outside of the United States. In any event, his DD Form 214 reflects almost two years and eight months of foreign and/or sea service. As such, the RO must obtain the Veteran's service personnel records to determine whether he served on the ground in Vietnam, Cambodia, Philippines, Thailand, and/or Japan. Next, the Board observes that the appellant has submitted evidence concerning CJD in general. This evidence, gleaned from the National Institutes of Health website, reveals that there is an incubation period of up to 50 years before the onset of symptoms of CJD. Due to the foregoing, which was not addressed by the April 2012 VA examiner, along with the fact that the autopsy report was not available to the VA examiner, a new VA medical opinion must be obtained in order to determine the connection, if any, between the cause of the Veteran's death and service. The examination instructions are contained in the fourth paragraph below. Accordingly, the case is REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining the necessary release from the appellant, make all necessary efforts to obtain a copy of the Veteran's autopsy report from both the University of Virginia Health System, Autopsy Services and Dr. J. Stewart of Chesapeake, Virginia, whose contact information is contained in the April 2007 letter sent to the appellant from the University of Virginia Health System. 2. Associate with the claims file the Veteran's service personnel records to determine the location of any on-the-ground foreign service (as opposed to sea service). 3. Prepare a memorandum detailing the location and dates of all foreign service other than sea service. 4. Only after accomplishing the three directives listed above and determining where the Veteran had foreign service (other than sea service), obtain a medical opinion regarding whether the cause of the Veteran's death is at least as likely as not (50 percent or greater likelihood) related to service. In rendering the opinion, the examiner should review the claims file in its entirety to include evidence regarding a possible long incubation before the onset of Creutzfeldt-Jakob disease (CJD) symptoms. The examiner should also take note of the dates and locations of the Veteran's foreign service. In the report, the examiner must indicate whether the requested review of the record took place and must provide a rationale for all opinions and conclusions. Note: As used above, 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. The examiner must be given a copy of this remand as well as a copy of the memorandum requested in Paragraph 3 above. 5. After completion of the above development, the claim of entitlement to service connection for the cause of the Veteran's death should be readjudicated. If the benefit sought on appeal is not granted, the appellant and her representative should be furnished with a supplemental statement of the case, and should be afforded an opportunity to respond before the file is 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 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. 2012). _________________________________________________ T. D. JONES Acting 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) (2012).