Citation Nr: 1326696 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 12-15 908 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1941 to September 1945. He died in May 2010. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the RO. By way of history, the Veteran, during his lifetime, filed a claim of service connection for metastatic squamous cell carcinoma, left neck/parotid, to include as due to mustard gas or Lewisite exposure. In April 2010, the Board reopened the claim and denied it on the merits. As this is a new claim for the appellant, the Board will consider this matter based on a de novo review of the evidence. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, including VA treatment records from Mountain Home VA Medical Center from May 2009 to July 2011. 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 being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The Board finds that a remand for further development is necessary at this juncture. The appellant claims that the Veteran's cause of death, metastatic squamous cell carcinoma was due to mustard gas or Lewisite exposure during his period of active duty during World War II. In connection with her May 2012 Substantive Appeal, VA Form 9, the appellant asserted that the Veteran participated in testing programs during World War II. The Board notes that, at the time of his death, the Veteran had not been granted service connected for any disability. The Veteran's death certificate notes that the immediate cause of his death was squamous cell carcinoma of the nose. In the case of the claim for residuals of chemical exposure, the VA M21-1MR, Manual of Adjudication Procedures, provides specific instructions and criteria for the development of claims related to mustard gas or Lewisite exposure. In light of this, full development in accordance with M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, is required. The Board acknowledges that the Veterans Benefits Administration (VBA) must seek to obtain confirmation from the Department of Defense that the Veteran was not exposed to mustard gas or Lewisite. The evidence of record is not clear with respect to whether all of the proper protocol concerning the development of his claim as per the Manual of Adjudication Procedures took place in connection with the Veteran's previous claim of service connection. A February 2001 Personnel Information Exchange System (PIES) request indicated that additional information regarding the Veteran's service was necessary to complete the search, suggesting that the search might have been incomplete. A VBA document dated in April 2008 indicated that the Veteran's name was not on the Mustard Gas exposure list. The evidence indicates that the Veteran's service records are not complete as they were likely destroyed in the 1973 fire and could not be reconstructed. The Board notes that in cases where a claimant's service records are unavailable by no fault of his own, a heightened duty exists to assist the claimant in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Thus, the Board finds that VA, with the help of the appellant, must ascertain as much information as possible regarding the Veteran's service in light of the appellant's claim. 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. The RO should take appropriate steps to contact the appellant in order have her identify any outstanding VA or non-VA treatment rendered to the Veteran prior to his demise. This should include any records not previously included in the record and any outstanding document referable to his medical care prior to death. After acquiring this information and obtaining any necessary authorization, the RO should attempt to obtain copies of all identified records and associate them with the claims file. 2. The RO then should proceed with the proper protocol as per the VBA Adjudication Manual, to verify the Veteran's alleged participation in service of any activity associated with mustard gas or Lewisite. Please also refer to the VBA Training Letter 05-01 - Revised Mustard Agent and Lewisite Claims Processing Procedures. Such protocol include: If the criteria in M21-1MR, Part IV, Subpart ii, 1.F.22b are met, the RO must send an e-mail message to the Compensation Service's mustard gas mailbox (mustardgas@vba.va.gov) requesting verification of full-body exposure. The email message should include the following information: the Veteran's full name, e-mail address, telephone number, date of birth, date of death, Social Security number, branch of service, service number, dates of service; the date of the alleged exposure (month and year); the geographic location of the alleged exposure; the unit to which the Veteran was assigned at the time of the alleged exposure; the type of exposure involved (full-body, patch, etc.); and the disabilities claimed as having resulted from exposure. Based on receipt of the e-mail, the Compensation Service personnel should be asked to confirm or deny exposure. If VA responds that the Veteran's name is not on the current mustard agent and Lewisite list, all other indicated development should be undertaken. 3. After completing all indicated development, including obtaining final confirmation of exposure, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought remains denied, the appellant and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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).