Citation Nr: 1336899 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-13 375A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to Dependent's Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran retired from service in June 1990, with 30 years of active service. He died in April 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in December 2008, October 2009, and September 2011 at which time it was remanded for additional development. It is now returned to the Board. The appellant was scheduled for a Board hearing in October 2010 but, in an October 2010 written statement, cancelled that hearing and did not request that it be re-scheduled. The Board finds that all due process requirements were met regarding the appellant's hearing request. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Board's September 2011 Remand, the RO/AMC was, in pertinent part, directed to obtain private medical records regarding the Veteran's treatment from various identified medical care providers, to specifically include Sanjay Prasad, M.D., of Rockville, MD. In the instructions, a Bethesda, MD, address was included for Dr. Prasad, which had been provided by the appellant. Thereafter, in July 2012, the RO/AMC sent correspondence to Dr. Prasad at the Bethesda, MD, address, requesting the identified medical treatment records. The correspondence was returned by the United States Post Office as undeliverable. A search by the Board on the internet reveals that Dr. Prasad has offices in Rockville, MD, and in Fairfax, VA. As it appears that the identified records may still be available and can be obtained, the Board finds that a remand is required for further attempts to obtain the records identified by the appellant. See 38 C.F.R. § 3.159(c)(2) (2013); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in the September 2011 Remand, the Board requested that following development which included obtaining additional medical records, the Veteran's claims file was to be returned to a VA oncologist who had provided a May 2010 opinion, so as to obtain an updated opinion as to whether the Veteran's cause of death was related to his active service. The Board indicated that if that oncologist was unavailable, the claims file was to be sent to another appropriate specialist. In January 2013, after review of the additional evidence of record, the requested opinion was provided by a VA nurse practitioner. There is no indication that an oncologist reviewed and concurred with the nurse practitioner's opinion. There is also no indication identifying the specialty of the nurse practitioner so as ensure that the directives of the September 2011 Remand have been complied with. The Board is obligated by law to ensure that the RO/AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall, 11 Vet. App. at 268. As this matter is being remanded to obtain additional medical records, and as such records must also be reviewed by an oncologist in rendering the requested medical opinion, the Board finds that on remand, the case must be sent to a VA oncologist, or another appropriate specialist with expertise in oncology, so as to obtain an opinion as to whether the Veteran's cause of death was related to his active service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall request that the appellant provide a signed authorization for VA to obtain medical records regarding the Veteran's treatment from Sanjay Prasad, M.D., of Rockville, MD. After obtaining a signed authorization, the identified medical records regarding the Veteran's treatment must be obtained. A request for the identified records of Dr. Prasad, shall be made at both (i) The Tower Building, 1101 Wootton Parkway, Suite 900, Rockville, MD 20852; and (ii) 3023 Hamaker Court, Suite 114, Fairfax, VA 22031. 2. After completion of the above development, the RO/AMC shall obtain an additional medical opinion from a VA oncologist, or another appropriate specialist with expertise in oncology, to determine whether the Veteran's cause of death was related to his active service. The examiner shall review the medical records and provide an opinion as to whether it is at least as likely as not that the Veteran's cause of death (i.e., cancer of the stomach) was related to his period of active service, including any notations of stomach pain in service, and/or due to exposure to Agent Orange during service. The record establishes that the Veteran served in the Republic of Vietnam. Hence, hence, exposure to an herbicide agent such as Agent Orange is presumed. 38 C.F.R. § 3.307(a)(6)(iii) (2013). However, stomach cancer is not among the diseases listed under 38 C.F.R. § 3.309(e) for which presumptive service connection is available. Yet, service connection may still be established based on exposure to an herbicide agent with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The examiner is requested to review and address the additional medical reports added to the record since May 2010, including the April 2003 and May 2013 opinions attributed to Dr. Ramon Sueiro; and records from Dr. Sanjay Prasad obtained as a result of this Remand. A complete rationale for all opinions must be provided. 3. The RO/AMC will then readjudicate the appellant's claims. If the benefits sought on appeal remain denied, she and her representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The appellant need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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) (2013).