Citation Nr: 1329734 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 06-16 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1968 to April 1972, including service in Vietnam; he died in February 2005. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana in which the appellant's claim of entitlement to service connection for the cause of the Veteran's death was denied. In November 2011, the Board requested a Veterans Health Administration (VHA) medical expert opinion pursuant to 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 20.901. This opinion was rendered in May 2010. In June 2012, the Board requested a supplemental opinion from the same VHA physician, which was received in September 2012. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the appellant's claim that is not included in the paper claims file. 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 A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded to the AMC/RO for action as described below. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. At the time of his death in February 2005, the Veteran was service connected for Diabetes mellitus (DM) Type II which is recognized by VA as associated with exposure to herbicides. The Veteran's DM was evaluated as 20 percent disabling. Service connection was not in effect for any other disability. The Veteran died while an inpatient in a private hospital (Community Hospital South). The Veteran's death certificate lists the immediate cause of his death as progressive Stage IV cancer of the esophagus; other medical records in evidence indicate that the esophageal cancer had metastasized to the Veteran's brain and liver. The Veteran's death was not ascribed as due to, or as a consequence of, any other condition and no other disorder was listed as a significant condition that contributed to the Veteran's death but did not result in the previously stated underlying cause. No autopsy was performed. In November 2011, the Board referred the case for a VHA medical opinion; three volumes of claims file records were sent to the Atlanta VA Medical Center (VAMC). Thereafter, in June 2012, the Board requested a supplemental opinion from the same VHA physician. While the medical opinion was completed in September 2012, the claims file was not returned to the Board from the Atlanta VAMC. A February 2013 Memorandum from the Director of Management, Planning and Analysis at the Board indicates that numerous searches for the missing records had been conducted at multiple locations, including at the Board, at the Atlanta VAMC, at the RO and at the Appeals Management Center without the records being found. After the appellant was informed of the missing claims file in February 2013, she submitted copies of records from her representative's file; these included a copy of the June 2005 rating; the March 2006 Statement of the Case (SOC); the January 2007 Supplemental SOC (SSOC); the May 2010 Board remand; and the June 2011 SSOC. Some private medical records, dated from March 2004 to January 2005 were also submitted. Review of these records indicates, however, that there are many outstanding records which are necessary to rebuild the three volumes of the claims file pursuant to the procedures of the VA Adjudication Procedure Manual, M21-1MR. Therefore, the case must be remanded for additional development to rebuild the claims file, pursuant to the procedures of the VA Adjudication Procedure Manual, M21-1MR, to include obtaining any outstanding records, including VA medical records from the Indianapolis VAMC; the rating which granted service connection for DM Type II, plus any VA medical records identified in the rating; the September 2010 VA medical opinion plus the May 2011 addendum; private medical records from Drs. Morgan E. Tharp II and Randall A. Lee; and the terminal hospital records from Community Hospital South dated in January and February of 2005. The appellant contends that the Veteran's fatal esophageal cancer was etiologically related to his exposure to tactical herbicides during his military service in Vietnam. Under Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007). The Board notes that, in 2011, the NAS released Veterans and Agent Orange, Update 2010. This information is available on the NAS publications website on the Internet (http://www.nap.edu/). In the report, in the Summary, at Table S-1, on page 8, the NAS concluded that there is inadequate or insufficient evidence to determine an association between exposure to herbicides and cancers of the esophagus and stomach. Since the Secretary has not specifically found a linkage between esophageal or stomach cancer and any herbicide exposure, no such gastroesophageal disorder can be presumed to be due to Agent Orange exposure. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The March 2012 VHA medical opinion (with an addendum dated in September 2012) discussed epidemiological data in general as to whether or not there is a relationship between exposure to tactical herbicides and the development of esophageal cancer. However, the medical opinion did not address the Veteran's particular situation in relation to entitlement to service connection on a direct basis. In addition, the medical opinion did not address whether the Veteran's service-connected DM contributed substantially or materially to his death and/or whether the DM combined to cause death and/or whether the DM aided or lent assistance to the metastatic esophageal cancer that ultimately caused the veteran's death. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Thus, further development of the evidence is necessary, requiring the gathering of records and further investigation. In addition, the duty to assist includes obtaining records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, remand is required in order to fulfill the statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed. 2. Undertake a comprehensive attempt to rebuild the claims file, to include obtaining the following records: a. any and all VA medical records from the Indianapolis VAMC; b. the rating which granted service connection for DM Type II, plus any medical records or VA examination reports identified in the rating; c. the September 2010 VA medical opinion plus the May 2011 addendum; d. any and all private medical records from Drs. Morgan E. Tharp II and Randall A. Lee; and e. the terminal hospital records from Community Hospital South dated in January and February of 2005. All efforts expended in this attempt to rebuild the file must be documented in the claims file. Copies of all records obtained are to be associated with the claims file. The appellant should cooperate in this effort as needed. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and her representative must also be informed of the negative results and be given opportunity to secure the records. 4. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed for a determination of the causes(s) of the Veteran's death by a pathologist. The reviewer must be provided with the entire claims file, including any records obtained pursuant to the above development, and a copy of this remand. If the reviewing physician does not have access to Virtual VA, any relevant records contained in the Virtual VA file that are not available to the reviewer must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewer is requested to provide an opinion as to the medical probability that the fatal adenocarcinoma of the gastroesophageal junction was related to the Veteran's in-service exposure to Agent Orange or to his service-connected DM. In particular, the reviewer must discuss whether the in-service exposure to tactical herbicides may have increased the Veteran's risk for esophageal cancer and give the probability of a significant contribution by Agent Orange exposure. The reviewer must also discuss whether any service-connected disability aggravated, contributed to or accelerated the esophageal cancer. The reviewer must provide an opinion as to the following questions: a. What was/were the primary/immediate cause(s) of the Veteran's death? b. What are the known risk factors for esophageal cancer? What risk factors did the Veteran have? What is the most likely cause of the Veteran's esophageal cancer? While the Agent Orange compendia do not list esophageal cancer as a cancer caused by Agent Orange, did the Veteran's exposure to tactical herbicides such as Agent Orange play any role in his development of esophageal cancer? Why or why not? Discuss the May 5, 1990 Report to the Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange (reported by Special Assistant Admiral E.R. Zumwalt, Jr.), which, in pertinent part, found that there was adequate evidence to reasonably conclude that it was at least as likely as not that there was a relationship between exposure to Agent Orange and esophageal cancers and cite to the current medical literature. c. What role, if any, did the Veteran's service-connected DM play in (i) causing, or (ii) aggravating the condition(s) leading to his death? If the Veteran's DM disability aggravated, contributed to or accelerated any esophageal cancer-related pathology, the reviewer must state to what extent the disability did so. d. What role, if any, did the Veteran's service-connected DM in the aggregate play in (i) causing, (ii) contributing substantially or materially to, or (iii) hastening the Veteran's death? Did the Veteran's DM affect a vital organ such as the heart/vascular system? Could the Veteran's DM be characterized as having a progressive or debilitating nature? e. Was there any service-related pathology that caused general impairment of health such that the Veteran was materially less capable of resisting the effects of whatever disease or event was the primary cause of death? The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. In assessing the relative likelihood as to origin and etiology of the esophageal cancer, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's death was causally or etiologically related to any incident of his active service, including exposure to Agent Orange and any service-connected disability such as DM, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the cause of the Veteran's death. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Upon receipt of the VA reviewing pathologist's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing pathologist for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 6. Undertake any other warranted development. 7. Then, readjudicate the claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 8. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).