Citation Nr: 1324262 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 04-37 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1318. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1953. He died in July 2003. The appellant is claiming entitlement to death benefits as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 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. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue on appeal. 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); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In this case, the appellant contends that service connection is warranted for the cause of the Veteran's death due to alleged mustard gas exposure during active military service. Prior to his death, the Veteran reported to an April 1955 VA examiner that his treatment for vomiting and acute gastritis in service was due to his proximity of mustard gas testing. He informed a November 2000 VA examiner that he was training with a defective gas mask and allegedly was exposed to "mustard gas" during service. Additionally, an April 1955 buddy statement noted serving with the Veteran at the Utah Dugway Proving Grounds where mustard gas testing was conducted. The Veteran's death certificate indicates his cause of death was hepatic failure due to (or as a consequence of) cryptogenic cirrhosis due to (or as a consequence of) mustard gas exposure due to (or as a consequence of) military service. The Board finds that although hepatic failure and cryptogenic cirrhosis are not listed under 38 C.F.R. § 3.316 for claims based on chronic effects of exposure to mustard gas, the appellant has submitted medical evidence, the Veteran's death certificate, showing a causal relationship between the disorders claimed and exposure. In January 2010, the RO requested verification of the Veteran's alleged mustard gas exposure. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, para. 22(c) (December 16, 2011). In April 2010, a response from the Department of Defense stated no documentation was found regarding mustard gas exposure or test participation in any of the three programs, consisting of Mustard Gas (MG), Shipboard Hazard and Defense (SHAD), and Chemical and/or Biological (CB). Review of the record does not show the RO completed further development needed if the Veteran is not listed in the Department of Defense database pursuant to M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, para. 22(d), thus proper development is necessary to decide the claim. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake all required development as indicated by the M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, para. 22(d). All documentation of such efforts and responses, both positive and negative, should be added to the claims file. The RO/AMC should also follow any recommendations provided in obtaining any relevant records from alternate sources. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the appellant should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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 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). _________________________________________________ JONATHAN B. KRAMER 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).