Citation Nr: 1330888 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-09 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California 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 William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from November 1961 to November 1964, and from September 1967 to September 1970. The Veteran died in September 1977, and the appellant is his surviving spouse. This matter comes to the Board of Veterans Appeals (Board) from a September 2005 rating decision which denied the appellant's application to reopen her claim of entitlement to service connection for the cause of the Veteran's death. In a July 2010 decision, the Board reopened the appellant's claim for entitlement to service connection for the cause of the Veteran's death. The claim was then remanded by the Board to the RO via the Appeals Management Center (AMC), for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). 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 Veteran died at a VA hospital in September 1977. He was 34 years of age. The certificate of death lists the cause of the Veteran's death as early focal bronchopneumonia with cachexia, due to resected adenocarcinoma of esophagus with bowel obstruction and fistulation. The certificate of death also lists remote pulmonary embolism as other significant conditions contributing to death but not related to the cause of death. The Veteran's STR's show treatment for pneumonia and upper respiratory symptoms. An April 1961 entry reported the Veteran's complaint of radiating substernal chest pain that was diagnosed as questionable esophageal spasm. After service, a November 1970 VA compensation physical examination was negative for any pertinent findings. At that time, a chest X-ray and examination of the throat were normal. VA chest X-rays in December 1973 report fibrosis and bullous emphysema. In June 1975, it was reported that the Veteran was admitted to a medical facility for an esophageal stricture. In September 1975, VA records show an admission for questionable carcinoma of the esophagus. A VA hospital report in March 1976 showed that the Veteran was status post adenocarcinoma resection of the esophagus in 1975. By July 1976, it was reported that studies had not shown recurrence of the carcinoma. In October 1976, VA records show that the Veteran was hospitalized for probable recurrence of esophageal carcinoma. At the time of his surgery in July 1975, VA records show the Veteran had an end-to-end anastomosis and partial wedge resection of the left lung for metastases. It was reported that the Veteran refused surgery for the recurrence of the tumor. He agreed to chemo and radiation therapy, if planned. A July 1977 VA hospital record showed that the Veteran was admitted for metastatic adenocarcinoma of the esophagus, left lung; adenocarcinoma external iliac nodes; and a right orchiectomy with left vasectomy. The Veteran subsequently received radiation and chemotherapy treatment, as well as additional surgery for metastatic carcinoma. His condition deteriorated, and his death ensued at a VA hospital in September 1977. Subsequent to a July 2010 Board remand, in May 2011, a VA medical opinion was completed by a VA nurse practitioner. The VA clinician reviewed the claims folder, and stated that the opinion was based on review of medical journals such as WebMD, Mayo and Cleveland Clinics, that primary adenocarcinoma of the esophagus metastasizes to nearby lymph nodes, the lungs, stomach, large blood vessels in the chest, and central nervous system. Whereas primary lung cancers themselves most commonly metastasize to the adrenal glands, liver, brain, and bone, but not to the esophagus. Also, it was stated that esophageal cancer is not related by herbicide exposure, but causes include heartburn/GERD, drinking alcohol, chewing tobacco, smoking, drinking very hot liquids, and eating very few fruits and vegetables or foods preserved in lye and obesity. The VA clinician opined that the Veteran's death was not caused by or related to service, to include presumed herbicide exposure. The examiner also determined that the Veteran's fatal lung cancer did not start in the lungs, but started in the esophagus and was not related to his military service to include herbicide exposure. The Board notes, however, that the examiner did not address sufficiently whether the Veteran's esophageal cancer could be related to his military service on a direct basis, notwithstanding the fact that esphogeal cancer is not a disease that is presumptively related to herbicides exposure. The service treatment records note a finding of questionable esophageal spasm in 1961. Several years after service, the Veteran was found to have an esophageal stricture in June 1975. Two years later the Veteran had died from esophageal cancer. The determinative inquiry in this case is whether the Veteran's questionable esophageal spasm could have been the result of a tumor in the esophagus that had yet to be detected. This is a medical issue that needs to be addressed. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a medical opinion from a qualified physician. The claims folders are to be provided to the examiner for review in conjunction with the opinion provided and the report should reflect that the physician reviewed the claims folder. After a review of the claims folder, the examiner should state whether it is at least as likely as not that the Veteran's adenocarcinoma of the esophagus was caused by any event, injury, or disease, or first manifested in his military service. In addressing this question please address the Veteran's medical history of having radiating substernal chest pain and a questionable esophageal spasm in service in April 1961, the post-service finding of estophageal stricture in June 1975, and September 1975 diagnosis of questionable carcinoma of the esophagus. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The rationale for all opinions expressed in the examination above should be provided. If the examiner is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO. If the benefit sought is not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ SARAH B. RICHMOND Acting 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) (2013). Department of Veterans Affairs