Citation Nr: 1332190 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 05-40 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from September 1958 to March 1981, including service in Vietnam. He died in October 2002 and the appellant claims as his surviving spouse. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death, entitlement to service connection for colon cancer due to Agent Orange for purposes of accrued benefits, entitlement to DIC under 38 U.S.C.A. § 1318, and eligibility for DEA. A Travel Board hearing before the undersigned was held in April 2007. A transcript of the hearing has been associated with the claims file. In August 2007 the Board denied the appellant's claims. In an April 2009 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court), vacated the Board's decision and remanded the claims. In October 2009, the Board remanded the claims for development indicated in the Joint Motion, specifically, to obtain hospice treatment records. The RO obtained these records and therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The case was returned to the Board, and in a July 2011 decision, the Board, in pertinent part, denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant then appealed the Board's July 2011 decision denying her claim to the Court. In a Memorandum Decision dated in January 2013, the Court set aside the Board's decision denying the Veteran's claim of entitlement to service connection for the cause of the Veteran's death, and remanded it for further development and readjudication consistent with the Court's Decision. 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 In the January 2013 Memorandum Decision, the Court indicated that the Board's decision applied the incorrect legal standard as to VA's duty to assist the appellant. The Court found that the Board required the appellant to present evidence indicating a possible nexus between the Veteran's death and his service. According to the Court, the Board was obligated to determine whether a medical opinion was necessary to determine whether the Veteran's colon cancer was the primary cancer, and whether the medical opinion was necessary to substantiate the appellant's claim. In this regard, the Court pointed out that 38 U.S.C.A. § 5103A(a) provides that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary. According to the Court, it is this general duty to assist provision, rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), which is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Although 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. As indicated in the discussion above with regard to denial of entitlement to service connection for the cause of the Veteran's death, the evidence in the claims file at the time of the Veteran's death did not reflect that the Veteran's colon cancer was related to service including his presumed Agent Orange exposure. As to a claim for entitlement to service connection for the cause of death, there are additional factors for consideration. Under 38 U.S.C.A. § 1310(a), when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to such veteran's surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. The death certificate indicates that the primary, and only, cause of death, was colon cancer. The appellant's claim is that the colon cancer was related to Agent Orange exposure, notwithstanding its absence from the list of diseases presumed service connected in veterans exposed to Agent Orange. In the alternative, the appellant argues that the Veteran's cancer did not originate in the colon, and may have originated in the region of his right inguinal hernia repair or be of a type that is presumptively service-connected for veterans exposed to Agent Orange. 34 F.3d 1039 (Fed. Cir. 1994). In this case, treatment records from the Watson Clinic indicate that the Veteran was first seen in August 2001. A colonoscopy showed a large fungating, exophytic, friable neoplasm was present in the ascending colon region; endoscopically, it appeared to be carcinoma. The Veteran underwent a needle biopsy in February 2002, wherein the diagnosis was metastatic adenocarcinoma, consistent with colonic primary. A May 2002 Lakeland Regional Medical Center discharge summary contained a discharge diagnosis of recurrent colon carcinoma. However, a May 2002 private pathology report included the following comment from Dr. Raghuwanshi, a fellow: "We cannot exclude that this tumor may represent a metastasis or direct extension of a tumor from another site." The report was signed by the attending pathologist, Dr. Coppola, who personally reviewed the entire pathology case and rendered the final diagnosis. Nonetheless, June 2002 and August 2002 records private treatment records showed treatment for recurrent colon cancer. A May 2007 statement from Dr. Yeatman, who wrote that, after a review of the Veteran's pathology and final report, he concurred "that it is 'as likely as not' that the tumor [the Veteran] suffered from may represent a metastasis or direct extension of a tumor from another site." Accordingly, the case is REMANDED for the following action: 1. Request an opinion from an appropriate physician as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's terminal colon cancer originated in the colon or somewhere else. If the cancer is found to have originated outside the colon, the primary location is to be identified. The examiner should also determine whether there is a relationship between the fatal disease process and service, to include herbicide exposure. The claims file must be sent to the physician for review. The examiner is request to review the record, to include the service treatment records and the Veteran's treatment records between his diagnosis in 2001 and his death in October 2002. The physician should be instructed that it is imperative that a thorough and complete rationale be given for each opinion expressed. 2. If the benefit sought on appeal is not granted, the appellant should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The matter should then be returned to the Board, if in order, for further appellate review. 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). 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs