Citation Nr: 1324154 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-44 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Brian S. Wayson, Attorney ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to December 1945 and from July 1947 to May 1964. He died in February 2007 and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon that, in relevant part, denied service connection for the cause of the Veteran's death. The appellant was scheduled for a Travel Board hearing at the Portland RO in March 2013, but requested that the hearing date be rescheduled. A new Travel Board hearing was set for June 2013 and notice of the hearing was mailed to the appellant in April 2013. In June 2013, the appellant withdrew her request for a hearing. The appellant has not requested another hearing and therefore, her hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary 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 assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The appellant seeks entitlement to service connection for the cause of the Veteran's death. The Veteran died in February 2007 at the age of 83 years old. At the time of the Veteran's death, he was service connected for chronic bronchitis, evaluated as 30 percent disabling; chronic sinusitis, evaluated as 50 percent disabling; anosmia, complete secondary to chronic sinusitis, evaluated as 10 percent disabling; and, loss of sense of taste, evaluated as 10 percent disabling. The record contains VA allergy clinic records from May 1965 that indicated emphysema and possible bronchiectasis on chest X-rays. The diagnoses included early emphysema. A VA radiology report dated August 1965 indicated that the Veteran had a history of emphysema. A November 1994 VA chest X-ray showed emphysema. A September 1997 VA outpatient note stated the Veteran had a history of emphysema. A VA emergency care record from July 2001 noted the Veteran's medical history includes COPD- emphysema. The February 2007 autopsy diagnosed the Veteran with "lungs with emphysematous changes." The April 2007 amended death certificate, which was signed by a physician, lists the immediate cause of death as end stage Parkinson's disease with the underlying cause of death listed as acute broncho pneumonia- lungs with emphysematous final anatomic diagnosis / autopsy. Emphysema is a presumptive disorder for veterans who had full body exposure to nitrogen, sulfur mustard or Lewisite during service. See 38 C.F.R. § 3.316(a)(2). The record contains a May 1993 letter from the Veteran to a service organization wherein he reports having been exposed to mustard gas during 1943 while training at Fort Meade. He stated that he underwent approximately a week of chemical warfare training, during which three drops of mustard gas was applied to the inside of his forearm. The Veteran also stated that during training, he entered a gas filled chamber on three occasions, including one occasion when he entered without a mask and then had to don his mask in the gas chamber. For purposes of submitting a claim relating to exposure to toxic gases under 38 C.F.R. § 3.316, the Court has held that lay evidence of in-service exposure must initially be assumed as true. Pearlman v. West, 11 Vet. App. 443 (1998). See also Washington v. Nicholson, 19 Vet. App. 362 (2005) (a veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent). The Court also held, however, that whether the veteran meets the requirements of 38 C.F.R. § 3.316, including whether he or she was actually exposed to the specified vesicant agents, is a question of fact for the Board to determine after full development of the record. Pearlman, supra. The Board observes that there is guidance regarding how to develop claims based on alleged exposure to mustard gas. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section F. As such, the RO must complete the appropriate development before re-adjudicating the Veteran's claims. Accordingly, the case is REMANDED 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. Provide the appellant appropriate notice regarding her claim for service connection as a result of the Veteran's alleged exposure to mustard gas. All additional information obtained from the appellant should be included in the claims folder for future review. 2. After completion of the above, the RO should conduct the development as outlined in the M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, 22 with regard to the appellant's claim that the Veteran was exposed to mustard gas during service. All development efforts made via email and mail, as well as the responses received, should be documented in detail in the claims file. 3. If the RO determines that the Veteran was exposed to mustard gas during service and presumptive service connection for emphysema is warranted, a new VA medical opinion should be obtained regarding whether or not the Veteran's cause of death was related to his military service. The claims file and a copy of this remand should be made available to the VA physician. The VA physician should opine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's service-connected disabilities, including emphysema, chronic bronchitis and chronic sinusitis, singly or together, caused or contributed to cause his death. For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. For a service-connected disability to contribute to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. The VA physician should specifically comment on the April 2007 amended death certificate's finding that the underlying cause of the Veteran's death was acute broncho pneumonia- lungs with emphysematous final anatomic diagnosis / autopsy. A complete and detailed rationale should be given for all opinions and conclusions expressed. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 4. Then, readjudicate the issues on appeal. If the benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL MARTIN 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).