Citation Nr: 1338301 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-07 345 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. He died on November [redacted], 2006. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The matter was later transferred to the jurisdiction of the Philadelphia RO. The matter was initially certified to the Board as two issues: entitlement to service connection for acute myeloid leukemia, and entitlement to service connection for the cause of the Veteran's death. However, the appellant does not have standing to file an original claim for service connection for acute myeloid leukemia, and there is no indication that she wishes to pursue a claim for accrued benefits. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Thus, the issue on appeal has been recharacterized as shown on the title page, which comports with the appellant's contentions and results in no prejudice to her. Bernard v. Brown, 4 Vet. App. 384 (1993). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran died in November 2006; his death certificate lists his cause of death as "acute leukemia." In November 2011, the appellant indicated that a physician treating her husband for acute myeloid leukemia (AML) at Hershey Medical Center had told her that he thought the Veteran's AML was linked to herbicide exposure during his Vietnam service. Although a few pages of clinical notes from Hershey Medical Center are of record, it seems apparent that all of the treatment records, which may include references to in-service exposure to herbicides, have not been received. Because the records from Hershey Medical Center may be relevant to the claim, they should be obtained. 38 C.F.R. § 3.159(c)(1). An April 2005 VA examination noted that the Veteran was exposed to herbicides during service, and that the Veteran had worked for many years as an aircraft mechanic, with "frequent contact with [benzene] type chemicals." The examiner could not reach a conclusion as to which exposure may have led to the development of the Veteran's leukemia without resorting to speculation. Evidence received since April 2005 includes statements from the Veteran's employers that he was not exposed to damaging levels of benzene during the course of his duties. A February 2005 note from Hershey Medical Center indicates that the Veteran's AML was a progression of myelodysplastic syndrome (MDS). The appellant has also submitted two statements from physicians specializing in the treatment of leukemias, dated July 2010, indicating that MDS/AML may be related to exposure to herbicides, although these statements concerned another individual. Under these circumstances, after obtaining any additional records from Hershey Medical Center, an opinion should be sought as to whether the Veteran's terminal illness may be linked to service. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appellant's written authorization, request all records of the Veteran's treatment for AML from Hershey Medical Center. If such records do not exist or are otherwise unavailable, a negative response should be obtained and the appellant must be notified. 2. After the aforementioned development has been completed, refer the matter to a person knowledgeable in the treatment of AML. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, VBMS CAPRI, and AMIE) should be reviewed by the person offering the opinion, who should indicated whether it is at least as likely as not (a 50 percent or greater probability) that the disease that resulted in this Veteran's death is related to his in-service exposure to herbicides. The examiner is to accept as fact that the Veteran was exposed to herbicides during his service. The examiner is also advised that service connection for AML is not precluded solely because the disease is not presumptively linked to herbicide exposure under VA regulations. The reviewers report should reflect an awareness of the April 2005 VA medical examination report, the documentation from the Veteran's employers regarding benzene exposure, and the two July 2010 letters from physicians specializing in leukemia indicating that there may be a link between exposure to herbicides and the eventual development of MDS/AML. The report also should include a complete rationale for all opinions expressed. If the reviewer feels that the requested opinion cannot be rendered without resorting to speculation, he/she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record (i.e. additional facts are required). 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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 (Court) 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). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).