Citation Nr: 1329679 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-16 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1989. He died in January 2000. The Veteran did serve in the Republic of Vietnam. The appellant is his widow. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an August 2007 rating decision of VA Regional Office (RO) in Philadelphia, Pennsylvania that declined to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The appellant resides in Georgia. By decision dated in November 2011, the Board found that new and material evidence had not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death, and in turn denied the claim without reaching the underlying merits. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 memorandum decision, the Court determined that the appellant had filed a timely notice of disagreement to a March 2002 rating decision. As such, the Court vacated the Board's 2011 decision and remanded the claim to the Board for further proceedings consistent with its decision. The case was remanded for further development in June 2013 to adjudicate the claim of entitlement to service connection for the cause of the Veteran's death on the merits. Following review of the record, 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 The Board is of the opinion that further assistance to the appellant is required to comply with the duty to assist provisions mandated by 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013) as to the claim. The death certificate shows that the Veteran died in January 2000. Immediate cause of death was cessation of circulation due to or as a consequence of chronic diarrhea. The Veteran's service treatment records reflect that he was treated for rectal bleeding of unknown origin in 1970; and for stomach cramps, gastroenteritis, and internal hemorrhoids in 1981. In April 1986, he was seen twice for complaints that included abdominal pain and fatigue of unknown etiology. It was noted on the latter occasion that a self-limited peptic ulcer was suspected. At the Veteran's March 1988 retirement examination, reference was made to a decreased hemoglobin count. Rectal examination revealed normal findings and no evidence of occult blood. Available private clinical records dated in 1999 show that he was treated for a number of gastroesophageal disorders in the months prior to his death, including ulcers, gastrointestinal bleeding, dysphagia, diverticulosis, internal hemorrhoids, gastritis, etc. It was noted that the Veteran had a history of microcytic anemia. A colonoscopy in November 1999 revealed findings that supported diagnoses of ileocecal valve ulcer, transverse colon ulcer, descending colon and sigmoid diverticulosis, and internal hemorrhoids. The appellant has advanced various theories as to the cause of the Veteran's death, including diseases caused by or resulting from exposure to jet fuel, Agent Orange and other chemicals, etc. In her June 2012informal brief she requests review and consideration of the medical evidence by a physician with a background in irritable bowel syndrome. The record reflects that the Veteran did not file a claim for VA compensation during his lifetime. Hence, he never had a VA examination for compensation and pension purposes. There is no competent or probative opinion in the record that addresses whether the disorders from which he died are related to gastrointestinal symptoms for which he was treated during active duty. The Board thus finds that the record is not sufficiently developed as to this appeal and that the Board does not have the requisite information to grant or deny service connection for the cause of death at this time. VA adjudicators are not free to substitute their own judgment for that of an expert. The Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Under the circumstances, VA is obligated to provide an examination of the record where the evidence indicates that a Veteran had a disability or signs or symptoms that might be associated with active service, and the record does not contain sufficient information to make a decision on the claim. The Court held in McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) that the threshold for getting an examination under the Veterans Claims Assistance Act of 2000 (VCAA) is low. See also Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In view of such, a current VA examination of the record warranted, to include a medical report and opinion. Finally, it appears that no request was ever made to the hospital where the Veteran died for copies of his terminal treatment at that facility. Hence, further development is in order. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the Northeast Regional Medical Center in Anniston, Alabama, and request that they provide copies of any medical treatment records they may have in their possession, to specifically include records pertaining to care provided in December 1999 and January 2000. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, refer the case to a VA physician is a gastrointestinal specialist or an internist for review of the record and a clinical opinion. Access to the claims folder, to include Virtual VA, and a copy of this remand must be made available to the reviewing physician. The reviewing physician must provide an opinion, with detailed rationale in a narrative report, as to a) the likely medical cause for the Veteran's death, b) whether it is as least as likely as not that the cause of the Veteran's death had its origins in service, and c) whether it is at least as likely as not that the cause of the Veteran's death was related to symptoms he experienced during service. The examiner must also address whether it is at least as likely as not that the Veteran's in-service exposure to whether Agent Orange or other environmental chemicals, including jet fuel, were implicated in the cause of his death. A complete rationale for the opinions should be provided in a narrative report. 3. After taking any further development deemed appropriate, readjudicate the issue. If the benefit sought is not granted, provide the appellant a supplemental statement of the case and afford her an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ DEREK R. BROWN 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).