Citation Nr: 1332293 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-00 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1982 to March 1988; he died in January 2009. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Louisville, Kentucky in which the appellant's claim of entitlement to service connection for the cause of the Veteran's death was denied. In July 2011, the appellant presented testimony at a Board videoconference hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The transcript reflects that the appellant waived review by the agency of original jurisdiction (AOJ) of a July 2011 letter from a private oncologist, copies of several photographs of the Veteran's skin disability and two lay statements; the oral statement, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). The appellant also submitted a written statement to that effect. Because the appellant has provided a written waiver of pertinent records that were not reviewed by the AOJ, referral to the RO of that evidence is not required. In any case, since the case is being remanded, the RO will nevertheless have the opportunity to consider the documents submitted by the appellant. 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. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. At the time of his death, service connection had been established for the Veteran's psoriasis; that disability had been rated as 60 percent disabling. The Veteran died in January 2009, and the death certificate lists the immediate cause of his death as recurrent head/neck cancer. No other diseases are listed on the death certificate as underlying causes leading to the immediate cause of death. No autopsy was performed. The appellant contends that the Veteran's service-connected psoriasis was a contributing cause of his death. She believes that the psoriasis contributed materially and substantially to his death by significantly affecting his course of cancer treatment and his response to his cancer treatment. The evidence of record includes three private oncologist letters dated in May 2009, February 2011, and July 2011. The oncologist indicates in those letters that the psoriasis was the reason that the Veteran was unable to tolerate his 2007 course of Erbitux and that the Erbitux could have put the Veteran in remission or achieved a cure. However, the oncologist incorrectly stated that after the skin reaction to the Erbitux that led to a three-week hospitalization, the Veteran never again received Erbitux. Records from one of his colleagues state that the Veteran was administered Erbitux in November 2008; it also appears that the Veteran received Erbitux in December 2008, as well. Review of the evidence of record reveals that the medical records relating to the 2007 administration of Erbitux and subsequent hospitalization for treatment of the resultant side-effects have not been included in the claims file. In addition, only a few documents from the oncology group that treated the Veteran between 2006 and 2009 are of record. As these records might shed some light on how the service-connected psoriasis did or did not affect the progression of the Veteran's fatal nasopharyngeal cancer, VA is on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Thus, on remand, all outstanding records from Consultants in Blood Disorders and Cancer, the James Graham Brown Cancer Center at the University of Louisville and the Baptist Hospital East must be sought, obtained and associated with the claims file. The RO did obtain a medical opinion on the matter of the effect of the service-connected psoriasis on the Veteran's death. However, as the medical opinion of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). On remand, another opinion should be obtained after the gathering of the outstanding medical records has been accomplished. 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 United States Court of Appeals for Veterans Claims 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. After obtaining the appropriate release forms from the appellant, contact the following physicians and hospitals to obtain any and all medical or treatment records or reports relevant to the cause of death claim, to the extent not already on file: a. Consultants in Blood Disorders and Cancer, Louisville, KY, to include: i. Dr. Leela Bhupalam (2006-2009) and ii. Dr. Ignacio Montes (2006-2009); b. James Graham Brown Cancer Center at the University of Louisville, Louisville, KY (2007); and c. Baptist Hospital East, Louisville, KY (2006-2009). 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 by a VA pathologist for a determination of the causes(s) of the Veteran's death. The reviewer must discuss whether any service-connected disability aggravated, contributed to or accelerated the fatal nasopharyngeal cancer. 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 must provide an opinion as to each of the following questions: a. What is meant by T2, NO nasopharyngeal carcinoma? By Stage III and IV head and neck cancers? What is the usual course of treatment and prognosis for such cancers? What is the expected long-term survival for a patient with such a cancer? What is the expected morbidity rate? b. When was the Veteran diagnosed with nasopharyngeal cancer? What types of treatment did he undergo? After each course of treatment, how was his prognosis affected? c. A June 2006 private physician letter states that the combination of radiation therapy and chemotherapy increases the probability of long-term survival and that it also triples morbidity. What does that mean in terms of nasopharyngeal cancer? Did the Veteran undergo a combination of radiation therapy and chemotherapy? If so, what was the likely effect on his long-term survival? d. What is Erbitux? In general, when is it used to treat nasopharyngeal cancer? Is it used as an initial therapy? What is the success rate for this treatment? e. With reference to the drug insert for Erbitux, what are the expected side-effects of this treatment? Are skin-related side-effects an unusual occurrence? Is there any difference when the Erbitux is administered in conjunction with radiation therapy? What percentage of patients has to stop Erbitux because of skin reactions? f. Did the Veteran experience side-effects when he was administered Erbitux in 2007? What proportion, if any, of his skin response can be attributed to the service-connected psoriasis? What was the effect of the discontinuation of the Erbitux in 2007 on the Veteran's prognosis and long-term survival rate? g. Did the Veteran experience side-effects when he was administered Erbitux at the end of 2008? If not, what does that mean vis-à-vis his psoriasis? h. What was the primary/immediate cause of the Veteran's death? What were the contributing conditions, if any, leading to the primary/immediate cause of the Veteran's death? i. What role, if any, did the Veteran's service-connected psoriasis in the aggregate play in (i) causing, (ii) contributing substantially or materially to, or (iii) hastening the Veteran's death? If the Veteran's psoriasis disability aggravated, contributed to or accelerated any nasopharyngeal cancer-related pathology, the reviewer must state to what extent the disability did so. j. Did the Veteran's psoriasis affect a vital organ? Could the Veteran's psoriasis be characterized as having a progressive or debilitating nature? How was the severity of the psoriasis reflected in the clinical evidence and/or photographs? Support your conclusion with reference to the clinical evidence of record. Discuss the private oncologist letters dated in May 2009, February 2011, and July 2011. k. Did the Veteran's service-connected psoriasis cause 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? Support your conclusion with reference to the clinical evidence of record. Discuss the private oncologist letters dated in May 2009, February 2011, and July 2011. The reviewer must identify the information on which the opinions are based. The opinions should 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 conditions specified above, the reviewer should 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 service-connected psoriasis was causally or etiologically implicated in the Veteran's death; or whether any other causal or etiological relationship between his death and his service-connected psoriasis is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer should clearly and specifically so specify in the report, and explain why this is so. 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. 6. Thereafter, readjudicate the appellant's claim on appeal. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC) and be allowed an appropriate period of time for response. 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). 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).