Citation Nr: 1337548 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-07 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for lung cancer including as due to exposure to herbicides. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A March 2010 rating decision denied the Veteran's claim of service connection for lung cancer including as due to exposure to herbicides. He submitted a timely notice of disagreement (NOD) in September 2010 and died in November 2010. Later in November 2010, the appellant, who is the Veteran's surviving spouse, specifically requested to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A (West Supp. 2013) (providing the opportunity for substitution of individuals eligible to receive accrued benefits in cases where the claimant died on or after October 10, 2008). The RO continued the appeal, substituting the appellant as the substitute claimant in pursuing this claim to resolution. Thus, the current appeal is as identified on the title page of this decision and the appellant is the appropriate claimant. In January 2012, the RO issued a statement of the case (SOC) that recharacterized the issue on appeal as entitlement to service connection for lung cancer (myelodysplastic syndrome (MDS)) as a result of exposure to herbicides. The appellant submitted a timely substantive appeal as to this matter in February 2012. Further, an August 2011 rating decision denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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, DC. VA will notify the appellant if further action is required. REMAND The record shows that the RO denied the Veteran's claims of service connection for MDS, asbestosis, and malignant melanoma, in March 2006 and August 2007 rating decisions, respectively. In November 2009, the RO received the Veteran's claim of service connection for lung cancer as due to exposure to herbicides. In a January 2010 written statement, he reported that he had melanoma with lung metastasis. VA medical records reflect that the Veteran was diagnosed with malignant melanoma in 2007 and was closely monitored for disease recurrence. A lingular nodule was found in August 2009 and, in September 2009, he underwent a left thoracotomy and left upper lobectomy. Pathology results were positive for metastatic melanoma. The VA and non-VA medical records also describe the Veteran's treatment for MDS, formally diagnosed in 2005. A January 2009 hematology/oncology record from Forsyth Regional Cancer Center indicates that the Veteran "had been in Vietnam and myelodysplasia process is associated with Agent Orange." The Veteran died in November 2010 due to metastatic malignant melanoma - that is the only cause of death listed on his death certificate. Another significant condition contributing to death but not resulting in the underlying cause was "myelodysplasia, exposure to [A]gent [O]range." Service records show that the Veteran served in Vietnam from January 1970 and March 1971, and is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307 (2013). Information regarding MDS, apparently obtained from the Internet by the RO in 2005 and placed in the claims file, indicates that its exact causes were unknown. However, other Internet information obtained in January 2010, and submitted by the Veteran and the appellant, reflects that MDS was caused by "environmental exposures such as radiation and benzene; other risk factors have been reported inconsistently." In an August 2011 written statement, the appellant reported that the Veteran also had posttraumatic stress disorder (PTSD), asbestosis, angina, ischemia, and possible traumatic brain injury, related to military service. She referenced statements made by his treating physician at Duke University Medical Center, Department of Medicine, Division of Hematology/Oncology, in February 2009. Records of such treatment are not in the claims file and efforts should be made to obtain them. See 38 C.F.R. § 3.159 (c)(4) (2013). In her February 2012 substantive appeal, the appellant maintained that records from the Forsyth Regional Cancer Center and VA medical center (VAMC) in Durham, North Carolina, supported a likelihood of a nexus between myelodysplastic syndrome and malignant melanoma to exposure to Agent Orange. She argued that metastatic malignant melanoma was covered under the "multiple myeloma" diagnosis as per 38 C.F.R. § 3.307. This is an apparent reference to VA regulations holding that, if a veteran is found to have served in the Republic of Vietnam, as in this case, his exposure to herbicide agents such as Agent Orange is presumed and multiple myeloma, among other specified diseases, shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. Here, given the appellant's contentions, and in light of the medical and other evidence of record, the Board believes that a medical opinion should be obtained prior to consideration of her claim. 38 U.S.C.A. § 5103(A)(d) (West 2002 & Supp. 2013). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, as noted previously, in the August 2011 rating decision the RO denied entitlement to service connection for the cause of the Veteran's death. In her February 2012 substantive appeal on the service connection claim, the appellant addressed the metastatic malignant melanoma that was the immediate cause of his death. The Board construes the appellant's statement as a NOD with the RO's denial of her claim for service connection for the cause of the Veteran's death. Since the appellant filed a timely NOD with respect to the matter of entitlement to service connection for the cause of the Veteran's death, the Board's jurisdiction has been triggered. At this point, the issue must be REMANDED, per Manlincon v. West, 12 Vet. App. 238 (1999), so that the RO can issue a statement of the case on the underlying claim. 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) (2013). Expedited handling is requested.) 1. Issue a statement of the case regarding the matter of entitlement to service connection for the cause of the Veteran's death. If, and only if, the appellant timely perfects an appeal as to the matter, should this claim be returned to the Board. 2. Obtain all medical records regarding the Veteran's treatment at the Duke University Medical Center, Department of Medicine, Division of Hematology/Oncology, Durham, North Carolina. 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) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(e) (2013). 3. After completion of the above-requested development, ask a VA physician with expertise in hematology/oncology to review the claims folder and provide an opinion as to whether there is a link between the Veteran's herbicide exposure in service and the malignant melanoma and the myelodysplastic syndrome diagnosed after service. a. Assuming that the Veteran had some exposure to herbicides, the physician should offer an opinion as whether it is at least as likely as not (i.e., at least a 50-50 probability) that malignant melanoma or myelodysplastic syndrome is the result of his in-service exposure. b. The physician should provide reasons for all opinions. If the physician is unable to give an opinion with respect to the questions presented, an explanation as to why should be provided. 4. If the benefits sought on appeal remain denied, issue a supplemental statement of the case. 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). 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).