Citation Nr: 1332337 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-30 689A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1968 to June 1969. He died in December 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota and issued by the RO in New York, New York. In October 2012, the RO determined that the appellant, as the Veteran's surviving spouse, could be substituted for the Veteran in this appeal. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389,§ 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2011)). The Board has recognized this substitution. The appellant indicated in her November 2012 substantive appeal (VA Form 9) that she wished to testify at a Board hearing before a Veterans Law Judge sitting at a local VA office. However, in April 2013 correspondence, she withdrew the hearing request. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the Virtual VA claims file reveals various private treatment records as well as VA treatment records dated through July 2010, which records were considered in the February 2013 supplemental statement of the case (SSOC). The Board also notes that the issues of entitlement to increased ratings for the Veteran's low back disorder and hypertension were addressed by the RO in the October 2012 statement of the case. However, in her November 2012 substantive appeal, the appellant indicated that she was only appealing the issue of entitlement to service connection for prostate cancer. As the appellant did not file a timely substantive appeal with respect to the issues of entitlement to increased ratings for the Veteran's low back disorder and hypertension, they are no longer in appellate status. 38 C.F.R. § 20.302(b) (2012). While the RO listed these claims on the May 2013 certification of appeal (VA Form 8), it has taken no steps to inform the appellant that these issues remain on appeal. In this regard, the Board notes that a February 2013 SSOC addressed the issue of entitlement to service connection for prostate cancer only. Therefore, the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims (Court)'s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), as in this appeal the appellant was not mislead by actions on the part of VA into believing that she had perfected an appeal as to these issues. Therefore, the issues of entitlement to increased ratings for the Veteran's low back disorder and hypertension are not properly before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The appellant argues that the Veteran's prostate cancer, which ultimately led to his death, should be service-connected as presumptively related to herbicide exposure. Specifically, she alleges that the Veteran was exposed to herbicides while involved in "Project Upkeep," a program which involved the housekeeping and maintenance of C-124 aircrafts that had flown in Vietnam, and that such exposure presumptively caused his fatal prostate cancer. The Board notes that the Veteran had generally asserted that his exposure to asbestosis and other chemicals while working as a mechanic had resulted in his prostate cancer. The record shows that the Veteran died in December 2010. According to the Certificate of Death, the immediate cause of death was cardiopulmonary arrest due to or as a consequence of prostate cancer. VA regulations provide that a veteran who, during active military, naval or air service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish the veteran was not exposed to an herbicide agent during such service. The presumption of exposure has recently been amended to include service with specific units in or near the Korean demilitarized zone between April 1, 1968, and August 31, 1971. Both the Veteran and the appellant contend that the Veteran had been exposed to herbicides during service at Stewart Air Force Base in New York. As neither the Veteran nor the appellant has contended that the Veteran served in the Republic of Vietnam or Korea, and there is no evidence of such service, the aforementioned presumptions do not apply in this case. Moreover, a July 2010 Joint Services Records Research Center (JSRRC) Memorandum indicated that it could not be documented that the Veteran was exposed to Agent Orange while cleaning aircraft at Steward Air Force Base. The Veteran was not afforded a VA examination in connection with his claim for service connection for prostate cancer. The Board notes a September 2009 opinion from Dr. A. S., the Veteran's private physician, indicated that the Veteran's prostate cancer was "at least likely as not caused by environmental factors" and that the Veteran's time in service and exposure to environmental toxins "may have contributed to his disease." However, this opinion is speculative and cannot support a grant of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The Board further notes that, unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant for a claim in which there has been substitution, but the record instead remains open for the submission and development of any pertinent additional evidence. See Veterans Benefits Administration Fast Letter 10-30 (Aug. 10, 2010). In addition, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a medical examination is no longer possible. However, given that there is evidence of possible in-service exposure to asbestosis and other chemicals (as the Veteran worked as an aircraft mechanic), and the September 2009 private opinion relating his prostate cancer to environmental factors, a VA opinion to determine the nature and etiology of the Veteran's prostate cancer should be obtained. Finally, the Board notes a December 2011 VA Authorization and Consent to Release Information to the Department of Veterans Affairs (VA Form 21-4142) in which the appellant indicated that the Veteran had received treatment at the VA Medical Center (VAMC) at Castle Point beginning in 1970. The appellant indicated that the Veteran records from 1970 to 1976 and from 1984 to 2008 had not been found by VA and had submitted specific VA treatment records from this time period. However, in accordance with Washington v. Nicholson, 19 Vet. App. 362 (2005), and 38 C.F.R. § 3.159(c)(2), the agency of original jurisdiction (AOJ) must ensure that all available records are associated with the record. If the records are unavailable, the AOJ must make a formal finding as to unavailability and, as required by 38 C.F.R. § 3.159(e), inform the Veteran (or the appellant) of the status of his records and advise him that alternative forms of evidence could be developed to substantiate his claim. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). On remand, the AOJ should take such steps to obtain the Veteran's missing VA treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all of the Veteran's VA treatment records from the Castle Point VAMC dated between 1970 to 1976 and from 1984 to 2008 as identified by the appellant on the December 2011 VA authorization form. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Once the foregoing actions are completed, forward the claims folder to an appropriate VA examiner in order to provide an opinion regarding the etiology of the Veteran's prostate cancer. The claims folder and a copy of this REMAND must be made available to and reviewed by the physician in connection with formulating the following opinions. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer is related to his military service. The examiner should specifically address the contention that the Veteran's prostate cancer was related to his exposure to asbestosis or other chemicals while working as a mechanic during service. The examiner should provide a rationale for any opinion reached, and make reference to all relevant medical records which support the rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claims remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).