Citation Nr: 1343346 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-27 887A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and M. T. ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from September 1967 to July 1969. He died in August 2007, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeal (Board) from a May 2008 rating decision by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO denied entitlement to service connection for the cause of the Veteran's death. The appellant appealed this rating action to the Board. In July 2013, the appellant testified before the undersigned Acting Veterans Law Judge (AVLJ). A copy of the hearing transcript has been associated with the record. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The appellant seeks service connection for the cause of the Veteran's death to include as due to exposure to Agent Orange. The appellant has argued that the Veteran's pancreatic cancer was a result of him having sprayed Agent Orange during his active military service in the RVN. The record reflects that the Veteran died in August 2007. The death certificate lists the immediate cause of death as respiratory failure caused by pneumonia and stroke. Other significant conditions contributing to his death but not resulting in the underlying cause were pancreatic carcinoma, hypercoagulable syndrome. It was also noted that he Veteran had undergone a laparoscopy, Whipple procedure in early July 2005. The Veteran's service personnel records indicate that he served in the Republic of Vietnam from August 2, 1968 to August 1, 1969. Therefore, duty in the Republic of Vietnam is shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309 (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL Amyloidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia and other chronic B-cell leukemias; and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The terms "soft tissue sarcoma" includes malignant schwannoma. 38 C.F.R. § 3.309(e) and Note (1). see also Final Rule, 78 Fed. Reg. 54763-54766 (2013). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). However, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-46 (Jan. 4, 1994); see also 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); 72 Fed. Reg. 32,345-32,407 (June 12, 2007). The Veteran's death was not caused or contributed by a presumptive disease for which service connection may be granted on the basis of exposure to herbicides under 38 C.F.R. § 3.309(e). In the absence of a diagnosed disease for which the Agent Orange presumption applies, 38 C.F.R. § 3.307(a)(6)(iii) is not applicable. The appellant's claim of service connection for the cause of the Veterans death can be asserted on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA has not obtained a medical opinion in this case. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) is inapplicable to DIC claims because the provision specifically states it is only for "disability compensation." Subsequently, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2) (West 2002). Here, consistent with the statute and case law, the Board finds that obtaining a VA opinion would help substantiate the appellant's claim. The Veteran's exposure to Agent Orange during his active military service in the RVN is presumed. In Wood, the Federal Circuit found the Board's misapplication of § 5103A to be harmful error in part because there was a disagreement about the facts of the case and those involving the Veteran's death. 520 F.3d at 1351-52. The Federal Circuit acknowledged in Wood, however, that the error in DeLaRosa was harmless because of the "indisputable lack of competent evidence" supporting the appellant's claim. Id. at 1349 (citing DeLaRosa, 515 F.3d at 1322). Thus, given the Veteran's presumed in-service exposure to Agent Orange during his active service in the RVN and the appellant's argument that his pancreatic cancer, a significant condition that contributed to his fatal demise, was a result of said exposure, the Board finds that remanding the claim to obtain a VA medical opinion regarding the Veteran's death has a reasonable possibility of aiding in substantiating the claim based on actual direct causation. Accordingly, the case is REMANDED for the following action: 1. Refer the claims files and a complete copy of this remand to a VA oncologist to determine whether there is any relationship between the Veteran's fatal respiratory failure; pneumonia; stroke; and, pancreatic carcinoma, hypercoagulable syndrome and his period of active military service. The reviewer should answer the following questions: Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's respiratory failure, pneumonia; stroke; or, pancreatic cancer, hypercoagulable syndrome had their onset in service or are etiologically related thereto, to specially include exposure to herbicides (e.g., Agent Orange) in the RVN. The examiner is hereby notified that the Veteran's exposure to Agent Orange during military service is presumed. If any of the above-cited disabilities is/are found to be related to service, is it at least as likely as not (i.e., at least a 50 percent probability) that it/they contributed materially and significantly to his death, that either it/they combined to cause death; or aided or lent assistance to the production of death? Consideration must be given to the certificate of death and the VA terminal medical records contained in the Veteran's physical claims files. A complete rationale should be provided for all opinions proffered and the foundation for all conclusions should be clearly set forth. If any of the requested opinions cannot be made without resort to mere speculation, the reviewer should so state, and provide a clear explanation (rationale) as to why this is so. 2. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the appellant's satisfaction, she and her representative should be provided with a Supplemental Statement of the Case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. 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. 2013). _________________________________________________ Michael J. Skaltsounis Acting 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).