Citation Nr: 1342964 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 06-11 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from August 1966 to September 1975. The appellant claims as the Veteran's surviving spouse. The claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by the Manila, the Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2008, the Board remanded the above-captioned matter, along with four accrued benefits claims, for additional development. In April 2010, the RO granted service connection for accrued benefits purposes for diabetes mellitus, one of the claims subject to the September 2008 remand. In August 2010, the Board denied the three remaining claims for accrued benefits, and remanded the above-captioned matter for additional development. The appellant appealed the Board's August 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court affirmed the August 2010 decision of the Board. The appellant next filed a motion for reconsideration for the claim for service connection for the cause of the Veteran's death. In March 2012, the Court denied this motion as this claim was not before the Court on appeal. Because the Board had remanded the claim in August 2010, and had not entered any decision on it, there was nothing for the Court to reconsider. The appellant appealed the Court's March 2012 decision to the United States Court of Appeals for the Federal Circuit, where the appeal was dismissed for untimeliness. The Board has considered documentation included in the Virtual VA and VBMS systems in reaching the determinations below. No new records pertinent to this appeal were found therein. 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 Board finds here that there is a reasonable possibility that a VA medical opinion would aid the appellant in substantiating her claim. 38 U.S.C. § 5103A(a). A remand is therefore necessary so this may be accomplished. The Veteran in this case died in April 2005. His death certificate indicates that the causes of death were respiratory arrest, chronic obstructive pulmonary disease (COPD) emphysema, and bronchopneumonia. Service treatment records show that in December 1968, the Veteran was hospitalized for 5 days for acute bronchitis. Prior to the admission, he had been diagnosed with an upper respiratory infection. In May 1970, the Veteran sought treatment for phlegm, congestion, rhinorrhea, a cough, and other symptoms. The records additionally show sinusitis with related congestion in January 1972, May 1972, June 1973, and March 1973. A VA medical opinion was obtained in July 2013 to address the Veteran's in-service asbestos exposure, which VA has conceded. See, e.g., July 2013 SSOC. The examiner determined that the Veteran's causes of death were less likely than not due to the in-service asbestos exposure. In so doing, the examiner addressed only post-service evidence, and did not address the symptomatology documented in service treatment records. The Board finds that the symptomatology documented in service treatment records should be addressed prior to appellate adjudication. Additionally, the appellant contends that the Veteran's causes of death were related to in-service herbicide exposure. See, e.g., September 2005 letter. VA has conceded that the Veteran served in Vietnam and is presumed to have been exposed to herbicides during service. See, e.g., August 2010 Board decision. However, the appellant has not submitted evidence to support the assertion. Finally, in this case, service connection has been awarded for only one condition, diabetes mellitus. In an October 2013 Brief, the appellant's representative asserted that diabetes mellitus and COPD are comorbid conditions, citing medical literature on the Internet to support such a relationship. Prior to his death, the record shows the Veteran was being treated for his diabetes, to include a hospitalization in September 2004, approximately 6 months prior to death, for diabetes and pneumonia, among other problems. While the cited Internet article does not appear to discuss whether diabetes can lead to COPD, based on the allegation and the evidence submitted, the Board finds that the examiner should also address this on remand. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA clinician for an opinion regarding the etiology of the factors that caused the Veteran's death. The clinician should review the claims folder and consider all pertinent evidence of record, including the April 2005 Certificate of Death which lists respiratory arrest, COPD emphysema, and bronchopneumonia as the causes of death. The examiner should provide an opinion as to whether it is as least as likely as not (i.e., 50 percent or greater probability) that any of these causes of death were due to an injury or other event or incident of the Veteran's period of active service, to include the symptomatology in the service treatment records discussed above. The examiner should additionally provide an opinion as to whether it is as least as likely as that his service-connected diabetes mellitus contributed substantially or materially to his death, or combined to cause death, or aided or lent assistance in producing death. A complete rationale for any opinion rendered must be provided. 2. Inform the appellant that if there is evidence linking death to herbicide exposure, she must submit that evidence. 3. Thereafter, the appeal should be readjudicated. If the benefit sought remains denied, furnish the appellant and her representative an appropriate Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, as indicated. 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. 2012). _________________________________________________ H. N. SCHWARTZ 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).