Citation Nr: 1310677 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-00 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1926 to June 1956. He died in October 1992; the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Appellant submitted a notice of disagreement in October 2004, a statement of the case was issued in November 2004, and a VA Form 9 was received in December 2004. In September 2006, the Board denied the Appellant's claim for service connection for the cause of the Veteran's death. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Court granted a Joint Motion to vacate the September 2006 decision and to remand the matter for further development. In compliance thereof, the Board remanded the issue in July 2009 for further development of the record. In September 2010, the Board again denied the Appellant's claim for service connection for the cause of the Veteran's death. The Appellant appealed the decision to the Court and in August 2012, the Court vacated the September 2010 decision and remanded the matter to the Board for further development. 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. (CONTINUED ON NEXT PAGE) REMAND The Appellant seeks entitlement to service connection for the cause of the Veteran's death. A remand is necessary in order to comply with the Court's decision in August 2012. The Court vacated the Board's September 2010 decision because it was determined that VA did not satisfy its duty to assist the Appellant in the development of her claim. As noted by the Court, the Appellant indicated that the Veteran was treated at the Naval Hospital at Subic Bay from 1956 through December 1991. Although the RO requested records from this facility, the record indicates that only records from January 1956 through January 1991 were requested. As such, the VA failed to satisfy the duty to assist and a remand is necessary in order to attempt to obtain these additional records. Additionally, the Court noted that the Appellant indicated that the Veteran received treatment at Clark Air Force Base hospital. Importantly, the Appellant did not identify these records prior to her appeal to the Court. As such, the Court found that the VA's failure to obtain these records was not a breach of the duty to assist. However, it is noted that upon remand, the Appellant may request the VA to obtain these records, provided she adequately identifies them. Finally, the Court indicated that the Board incorrectly cited to 38 U.S.C.A. § 5103A(d), McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) when explaining that no medical nexus opinion was obtained. The Court noted that section 5103A(d) applies only to claims for disability compensation, not to claims for dependency and indemnity compensation. As the claim is being remanded to obtain records, the Board finds that a medical opinion regarding the Veteran's cause of death should also be obtained. The Board notes that the Appellant has asserted that the Veteran's cause of death was a result of his exposure to radiation during service. The Veteran's cause of death, cardiorespiratory failure and cardiovascular failure, are not disorders that are subject to the presumptive provisions applicable to Veterans exposed to radiation. See 38 C.F.R. § 3.309. Importantly, however, service records indicate the Veteran sustained an injury to his chest during service, resulting in traumatic pleuritis. A medical opinion should be obtained to determine whether the Veteran's injury during service caused or contributed to the Veteran's death. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all records from the Naval Hospital at Subic Bay from January 1, 1956 through January 1, 1992. 2. Contact the Appellant and obtain authorization to request records from Clark Air Force Base hospital. After securing any necessary authorization or medical releases, the RO should obtain those records and associate them with the claims folder. Also, notify the Appellant that she may obtain the evidence herself and send it to VA. If no additional records are located, a written statement to that effect should be requested for incorporation into the record. 3. Arrange for the Veteran's claims folder to be reviewed by an appropriate VA examiner. After review, the examiner must opine as to whether it is at least as likely as not (i.e., probability of 50 percent), more likely than not (i.e. probability of more than 50 percent) or less likely than not (i.e. probability of less than 50 percent) that the Veteran's injury during service and resulting episode of pleurisy during service caused the death of the Veteran or contributed substantially or materially, combined, aided or lent assistance to cause the death of the Veteran, which is listed as cardiorespiratory failure with cardiovascular failure as an underlying cause. The rationale for any opinion expressed should be provided in a legible report. 4. 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 preceding paragraphs, the Appellant's claim should be readjudicated. If the claim remains denied, the Appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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).