Citation Nr: 1326484 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-28 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1972, to include service in the Republic of Vietnam from May 5, 1971 to March 30, 1972. He died in January 2011. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. 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 As reflected in the January 2011 death certificate, the cause of the Veteran's death was hemorrhagic stroke, due to chronic hypertension. During his lifetime, service connection was established for bilateral hearing loss and tinnitus. The appellant's representative has asserted that the Veteran's diagnosed diabetes mellitus type II cause or contributed to his death, either directly or by causing or aggravating his hypertension. The Veteran served in the Republic of Vietnam, exposure to Agent Orange is presumed, and diabetes is on the list of diseases that are presumed related to Agent Orange exposure. 38 C.F.R. § 3.309(e) (2012). As noted above, the record reflects that the Veteran served in the Republic of Vietnam, and thus, in-service exposure to herbicides is presumed. Neither hypertension nor hemorrhagic stroke is among the diseases presumptively linked to herbicide exposure, so service connection cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). However, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims (the Court) has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board concludes that a medical opinion should be obtained addressing whether the Veteran's service, to include exposure to herbicides, was related to his death either because diabetes caused or contributed to his death or his hypertension, or because exposure to Agent Orange caused his hypertension, and if so, whether this disease singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto, or contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1), (b) (2012). Also, in a claim for service connection for the cause of death, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the cause of the Veteran's death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the Veteran's death based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, in a letter sent to the appellant in March 2011, the RO did not inform the appellant of the disabilities for which the Veteran was service-connected at the time of his death. Thus, on remand, the RO or AMC should send appropriate notice to the appellant that includes a statement of the conditions for which the Veteran was service-connected at the time of his death. Accordingly, the case is REMANDED for the following action: 1. Send to the appellant and her representative notice regarding her claim for entitlement to service connection for cause of the Veteran's death. The letter should include a statement of the conditions for which the Veteran was service-connected at the time of his death (bilateral hearing loss and tinnitus). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 2. Thereafter, obtain a medical opinion to determine whether the Veteran's diabetes mellitus type II caused or contributed to his death to include whether it caused or aggravated his hypertension, or whether hypertension was related to exposure to Agent Orange, and if so, whether this disease was either the principal or contributory cause of his death. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. Following a review of the claims file, to include service and post-service medical records and any records of the Veteran's exposure to radiation in service, the examiner is requested to determine: (a) whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's diabetes mellitus, type II, either (1) singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto, or (2) contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death, or (3) caused or aggravated the Veteran's hypertension. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. (b) whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's hypertension was the result of his service, to include presumed herbicide exposure; (c) whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's hypertension either (1) singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto, or (2) contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. The examiner should note that it is not sufficient to show that a disability casually shared in producing death; it must be shown that there was a causal connection. A complete rationale for all opinions must be provided. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the appellant and her representative, and return the appeal to the Board for appellate review, after the appellant has had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).