Citation Nr: 1333067 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 06-35 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. He died in December 1977, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appellant requested, and was scheduled for, a hearing before a Veterans Law Judge (VLJ) at the RO in March 2009. Instead, the appellant testified before a Decision Review Officer (DRO) at an informal hearing. A copy of that proceeding is in the claims file. The appellant was subsequently scheduled for a VLJ hearing in August 2009. In a July 2009 letter, the appellant indicated that she would not be attending the hearing. Thus, the Board considers the request for a hearing withdrawn. See 38 C.F.R. § 20.704(d). In September 2010, the Board determined that new and material evidence had been received to reopen the claim of service connection for the cause of the Veteran's death, and remanded the merits of the claim for further development. In February 2012, the Board denied the appellant's claim of service connection for the cause of the Veteran's death. The appellant filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per an undated Joint Motion for Remand (JMR) and February 2013 Court Order, the Board's decision was remanded for compliance with instructions in the JMR. 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 Additional development is necessary to comply with the JMR instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Court or Board is not complied with, the Board itself errs in failing to insure compliance. Id. The Veteran was not service connected for any disability at the time of his death. The Veteran died on December [redacted], 1977. The causes of death listed on the certificate of death were cardio respiratory arrest due to, or as a consequence of astrocytoma. The record establishes that the Veteran served in the Republic of Vietnam. Thus, exposure to an herbicide agent such as Agent Orange is presumed. See 38 C.F.R. § 3.307(a) (6) (iii) (2013). In September 2012, the Board reopened the appellant's claim of service connection for the cause of the Veteran's death, and remanded the merits of the claim for further development. Specifically, a VA opinion was required to determine whether the Veteran's diabetes mellitus, type II, was a substantial or contributing factor in his death. The RO obtained a medical opinion in March 2011, at which time the VA physician opined that it "is less likely than not" that the Veteran's service-connected diabetes mellitus, type II, was a substantial or contributing factor in his death. The VA examiner stated that there was no documentation of uncontrolled diabetes at the time of the Veteran's death. He also stated that there was no known association or causation found in the medical literature concerning astrocytoma and diabetes. In February 2012, the Board denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. The JMR determined that the VA medical opinion was inadequate. See Stelf v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the March 2011 medical opinion addressed whether the Veteran's service-connected diabetes caused or contributed to his death, it did not address the appellant's contention that the Veteran's astrocytoma was etiologically related to his exposure to herbicides. The JMR acknowledged that astrocytoma is not among the diseases listed under Section 3.309(e). However, the March 2011 medical opinion did not consider all possible theories for service connection for the cause of the Veteran's death, in particular, and most importantly, direct service connection under 38 C.F.R. § 3.312. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir.1994). The Court has held that once VA undertakes a duty to obtain a medical opinion, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a new VA medical opinion must be obtained to determine whether the Veteran's astrocytoma, as listed on his death certificate, was etiologically related to his presumed exposure to herbicides. Accordingly, the case is REMANDED for the following action: 1. Contact the March 2011 VA examiner for an addendum medical opinion. A copy of the claims folder, to include a copy of this remand, must be made available for review. The examiner should indicate whether it is at least as likely as not (i.e., 50 percent probability or greater) that the cause of the Veteran's death was etiologically related to his active service, including his presumed exposure to herbicides. He should include cites to any medical studies or publications that underlie his conclusions. A thorough rationale must be provided. If the March 2011 VA examiner is unavailable, contact another suitable healthcare provider for a medical opinion. If the examiner determines that an answer to any question cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the appellant and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless she is notified. 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). _________________________________________________ THOMAS J. DANNAHER 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).