Citation Nr: 1416136 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 09-09 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active service from August 1969 to August 1999. He died in March 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In her August 2009 substantive appeal, the appellant requested a Board hearing before a Veterans Law Judge to be conducted in Washington, D.C. In a February 2014 letter, she was advised that her requested hearing had been scheduled for March 2014; however, as reflected by the Veterans Appeals Control and Locator System, she failed to report for such hearing. Therefore, the appellant's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2013). The Board observes that, in addition to the paper claims file, the appellant also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception of the appellant's representative's March 2014 Appellant's Brief, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Further, the appellant's VBMS file does not contain any documents at this time. In June 2013, the appellant submitted additional evidence in support of her claim. In a March 2014 letter, her representative waived the right to have any evidence submitted subsequent to the March 2013 supplemental statement of the case initially considered by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The appellant asserts that entitlement to service connection for the cause of the Veteran's death is warranted. Specifically, she claims that the Veteran was exposed to herbicides during and after the Vietnam War era, to include while serving in Guam, which caused him to develop lung cancer. Alternatively, she claims that the Veteran's lung cancer had it onset during service or was caused by exposure to hazard chemicals, to include gasoline, jet fuel, diesel fuel, and fumes, coincident with his duties while serving as a vehicles operations manager for 30 years, or dirt while he was serving in the Middle East. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Veteran died in March 2007 at the age of 55. The death certificate lists the immediate cause of death as cardiac arrhythmia. The underlying causes of death were listed as respiratory failure, chronic pulmonary emoboli, and adeno lung carcinoma. No autopsy was conducted. At the time of the Veteran's death, he was service-connected for degenerative disc disease of the lumbosacral spine, degenerative disc disease of the cervical spine, keratitis, tinnitus, dermatitis, restless leg syndrome, residuals of left thumb avulsion fracture, left ear hearing loss, and excision of an epidermal inclusion cyst on the left ear. However, as indicated previously, the appellant does not contend that such service-connected disabilities caused or contributed to the Veteran's death. Rather, she claims that his fatal lung cancer had its onset in, or is otherwise directly related to his military service. Specifically, as noted above, the appellant has claimed that the Veteran's lung cancer was caused by exposure to herbicides during his service in Guam. See April 2013 statement. Respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), are listed as diseases that have been determined to be presumptively related to herbicide exposure. 38 C.F.R. § 3.309(e). The RO determined that the Veteran was not exposed to herbicides because he did not serve in Vietnam. However, the RO has not yet determined whether the Veteran was exposed to herbicides during his service in Guam. In this regard, the appellant has alleged that he served in Guam in for six months in 1972, and from March 1973 to May 1975. VA's Adjudication Procedures Manual, M21-1MR, provides procedures to develop claims based on herbicide exposure on a factual basis in locations other than in Vietnam or near the DMZ in Korea. See M21-1MR at IV.ii.2.C.10.o. As an initial step, the Veteran is to be requested to provide the approximate dates, location, and nature of the alleged exposure. If such information is obtained, the AOJ should furnish the Veteran's detailed description of exposure to the Compensation Service via email and request a review of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review does not confirm that herbicides were used as alleged and the Veteran has provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request should be sent to JSRRC for verification of exposure to herbicides. In the instant case, the RO has not followed C&P Service's direction in handling the appellant's claim relating to herbicide exposure based on locations other than Vietnam or Korea. Therefore, the Board finds that the RO should attempt to verify the Veteran's alleged herbicide exposure during his service in Guam by obtaining his service personnel records to verify such service and, thereafter, following the procedures provided by the C&P Service in Manual M21-1MR. As noted previously, the appellant has contended in the alternative that the Veteran's lung cancer had its onset in service or is otherwise directly related to service. The appellant has provided medical opinions from VA physicians regarding the etiology of the Veteran's lung cancer. In a January 2009 letter, Dr. T.W. stated that the Veteran presented with an advanced stage of lung cancer and, in his opinion, "it is not accurately possible to determine whether [the Veteran] had any measurable disease burden at the time of his retirement from the U.S. Air Force." In a November 2008 letter, Dr. D.B. stated "[t]his cancer may have developed while [the Veteran] was on active duty in 1999." The Board finds that these opinions are insufficient to support a grant of service connection for cause of death. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). The Board notes that the Veteran's service treatment records (STRs) are negative for any diagnosis of lung cancer or other respiratory disease. However, his STRs show numerous complaints of shortness of breath and chest pain. Moreover, the appellant and her representative have submitted or identified internet articles addressing the adverse impact that hazardous chemicals, including gasoline, diesel fuel, and jet fuel, have on the lungs. Thus, the Board finds that a VA medical opinion is necessary in order to determine whether the Veteran's cause of death is related to his military service, to include his in-service complaints regarding shortness of breath and chest pain, and/or as due to his exposure to hazardous chemicals. See 38 U.S.C.A. § 5103A(a)(1); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Finally, while on remand, the appellant should be given an opportunity to identify any additional outstanding medical records referable to the Veteran. In this regard, while records from Brooke Army Medical Center are of record, the appellant indicated in an August 2007 authorization form that the Veteran also received treatment from Northeast Methodist Hospital and Compass Hospital during the period from January 2007 to March 2007. Additionally, in December 2007, the appellant indicated that the Veteran was seen at Malcolm Grown Medical Center between 1996 and 1999 and at the Audie Murphy VA Hospital in 1999. Therefore, after the appellant provides any necessary authorization forms, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records from any appropriate source. 2. Following the receipt of the Veteran's service personnel records, request from the Compensation and Pension Service a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or tested on Guam during the time the Veteran was stationed there. If the Veteran's exposure is not verified by the request to the Compensation and Pension Service, verification should be sought from JSRRC. The AOJ should forward a list of the Veteran's service dates and duty locations, and the appellant's contentions regarding the nature of the Veteran's exposure to herbicides in Guam to JSRRC, and request verification of his exposure to herbicides. The results of this development should be outlined in a memorandum for the record. 3. The appellant should be given an opportunity to identify any additional outstanding medical records referable to the Veteran, to include those from Northeast Methodist Hospital and Compass Hospital during the period from January 2007 to March 2007, Malcolm Grown Medical Center between 1996 and 1999, and the Audie Murphy VA Hospital in 1999. After obtaining any necessary authorization from her, the AOJ should request all outstanding records. All reasonable attempts should be made to obtain such records. 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) and 38 C.F.R. § 3.159(e). 4. After the above development has been completed and all outstanding records have been associated with the claims file, the claims file should be forwarded to an appropriate medical professional to obtain an opinion regarding the cause of the Veteran's death. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. After a full review of the claims file, the examiner should offer an opinion and answer the following questions: (a) Is it as least as likely as not (i.e., 50 percent or greater probability) that the Veteran's lung cancer had its onset in service or is otherwise related to service, to include his in-service complaints of shortness of breath and chest pains and/or his in-service exposure to hazardous chemicals to include to include gasoline, jet fuel, diesel fuel, and fumes, coincident with his duties while serving as a vehicles operations manager for 30 years, or dirt while he was serving in the Middle East? In rendering such opinion, the examiner should consider the internet articles submitted or identified by the appellant in April 2013 and her representative in March 2014 addressing the adverse impact that hazardous chemicals, including gasoline, diesel fuel, and jet fuel, have on the lungs. (b) Is it as least as likely as not that the Veteran manifested a malignant tumor within one year of his separation from service in August 1999, i.e., by August 2000? If so, what were the manifestations? (c) Is it as least as likely as not that the Veteran's cause of death otherwise related to his period of military service from August 1969 to August 1999? In offering the foregoing opinions, the examiner should specifically consider the aforementioned internet articles as well as Drs. D.B. and T.W.'s opinions rendered in November 2008 and January 2009, respectively. A complete rationale for all opinions expressed should be provided for each question above described. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).