Citation Nr: 1422480 Decision Date: 05/19/14 Archive Date: 05/29/14 DOCKET NO. 12-17 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to December 1983. The Veteran died in March 2008. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2013, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For Dependency and Indemnity Compensation (DIC) benefits, including claims for cause of death, notice must include: (1) a statement of the conditions, if any, for which the veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate her claim in May 2008 and June 2009. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile. However, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159 (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The duty to assist for claims based on service connection for the cause of death requires that VA make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). VA regulations provide that certain disorders associated with herbicide agent exposure in service, including some soft-tissue sarcomas and ischemic heart disease, may be presumed service connected. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). A review of the record shows that during the Veteran's lifetime service connection was established for diabetes mellitus, duodenal ulcer, nephrolithiasis (kidney stones), peripheral neuropathy of the left lower extremity associated with diabetes mellitus, peripheral neuropathy of the right lower extremity associated with diabetes mellitus, and erectile dysfunction associated with diabetes mellitus. His death certificate shows he died in March 2008 with sepsis as the immediate cause of death and respiratory failure, pulmonary embolism, and colostomy takedown as underlying causes of death. Gastric cancer was listed as a significant contributing condition. The medical records associated with his final illness have been obtained and a VA medical opinion addressing the claimed relationship between the Veteran's duodenal ulcer and his gastric cancer was obtained in February 2012. The appellant has asserted that the Veteran's death occurred as a result of gastric cancer that developed due to his service-connected duodenal ulcer and his exposure to Helicobacter pylori. Her service representative provided medical literature excerpts in August 2013 in support of that contention. The appellant has also reported that the Veteran had three tours of service in the Republic of Vietnam and the Board notes his service discharge report shows he was awarded medals suggestive of service in Vietnam. The available record, however, includes no opinions addressing whether the Veteran's gastric cancer developed as a result of herbicide exposure nor opinions as to whether a service-connected injury or disease contributed substantially or materially to his death. Therefore, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's actual service in the Republic of Vietnam or, if necessary, any actual exposure to herbicides during active service. 2. Request that the February 2012 VA examiner, or another appropriate medical specialist, review the record and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastric cancer developed as a result of herbicide exposure. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a service-related injury or disease contributed substantially or materially to the Veteran's death. 3. Then, readjudicate the claim. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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).