Citation Nr: 1419128 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 12-08 719 ) DATE ) ) On appeal 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: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran had active service in the United States Army from October 1966 to May 1969; he served in Vietnam and was awarded the Purple Heart Medal. The Veteran subsequently served on active duty in the Army from March 1971 to August 1988, when he retired. The Veteran died in April 2010. The appellant is seeking benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Original jurisdiction of the appellant's claim resides in the RO in Atlanta, Georgia. In addition to the paper claims file, there is an electronic file associated with the claim. Virtual VA does currently contain evidence pertinent to the claim that is not already included in the paper claims file, including private treatment records and the April 2014 written statement from the appellant's representative. The issue of entitlement to death pension benefits has been raised by the record, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The paper claims file was transferred to the Board on February 21, 2013. The paper claims file currently contains just a few pages of service medical treatment records for the Veteran dated between 1986 and 1988. The appellant's claim was addressed in the August 2011 rating decision and the February 2012 Statement of the Case (SOC). These documents stated that service medical treatment records dated between October 1966 and October 1972 had been reviewed and that service medical treatment records dated between February 1977 and August 1988 had been reviewed. However, these records have not been included in either the paper claims file or the electronic file and therefore they have not been included in the evidence of record before the Board. On remand, the rest of the Veteran's service medical treatment records must be included in the evidence of record. In addition, the evidence of record indicates that the Veteran was retired military and that he received TRI-CARE medical treatment, including at Martin Army Community Hospital. For example, the Veteran underwent a CT scan at Martin Army Community Hospital in December 2008. However, no TRI-CARE treatment records have been included in the evidence of record. Therefore, VA is on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). While the case is in remand status, VA must obtain all outstanding post-service medical treatment records for the Veteran, including VA, TRI-CARE and Martin Army Community Hospital treatment records. All records obtained must be associated with the claims file. The appellant contends that in-service head trauma related to the Veteran's receipt of the Purple Heart Medal was an underlying cause of his fatal glioblastoma. A private medical opinion to that effect has been included in the evidence of record. No confirmation of said head trauma has been accomplished and no medical opinion was obtained in relation to that contention. In addition, the appellant's representative argues that in-service exposure to malaria and/or dioxin in Vietnam was an underlying cause of the Veteran's fatal glioblastoma and he has submitted information supporting those theories. No medical opinion was obtained in relation to that contention. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a medical opinion should have been obtained regarding any connection between the Veteran's service and the development of the fatal glioblastoma. The medical evidence of record is insufficient for the Board to render a decision. The considerations above require investigation by medical professionals as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. In particular, ensure that appellant and her representative have received notification the meets the requirements as interpreted by the United States Court of Appeals for Veterans Claims in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The letter must explain, what, if any, information and evidence (medical and lay) not previously provided to VA is necessary to substantiate the assertions advanced by the appellant; the evidence of record concerning her assertions must be taken into account. 2. Search, at the National Personnel Records Center, or other appropriate sources, for the rest of the Veteran's service medical treatment records. Identify the wound for which the Veteran received the Purple Heart Medal. If any location contacted suggests other sources, those sources must be encompassed by the search. Ensure that any copies included in the claims file are legible. 3. After obtaining the appropriate release forms from the appellant, obtain all TRI-CARE treatment records, to include outpatient treatment at the Martin Army Community Hospital, as well as all VA treatment records, if any. 4. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 5. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed for a determination of the cause of the Veteran's death by an appropriate physician, such as a pathologist. The reviewer must be provided with the entire claims file, including any records obtained pursuant to the above development, and a copy of this remand. If the reviewing physician does not have access to the electronic file, any relevant records contained in the electronic file that are not available to the reviewer must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewer is requested to provide an opinion as to the medical probability that the fatal glioblastoma is related to any aspect of the Veteran's service. The reviewer must provide an opinion as to the following questions: a. What is known about the etiologic causes of glioblastoma multiforme? b. Is there any etiologic connection between any in-service head trauma (if any) and the development of the glioblastoma? Explain why or why not. Discuss the materials submitted in support of this theory. c. Is there any etiologic connection between any in-service exposure to malaria (if any) and the development of the glioblastoma? Explain why or why not. Discuss the materials submitted in support of this theory. d. Is there any etiologic connection between any in-service exposure to herbicides in Vietnam, including dioxin, and the development of the glioblastoma? Explain why or why not. Discuss the materials submitted in support of this theory. The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. In assessing the relative likelihood as to origin and etiology of the fatal glioblastoma, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's death is causally or etiologically related to any incident of his active service, including any incident related to his service in Vietnam, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the cause of the Veteran's death. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Upon receipt of the VA physician reviewer's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. Thereafter, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 8. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).