Citation Nr: 1513215 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 13-03 478A ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, which included service in the Republic of Vietnam from July 1967 to June 1968. He died in September 1999, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In addition to denying entitlement to service connection for the cause of the Veteran's death, the April 2011 notice letter explained that the appellant's claims for Dependency and Indemnity Compensation, death pension, and accrued benefits were also denied. As the appellant's February 2013 notice of disagreement addressed why she believed the Veteran's death was related to his exposure to herbicide agents in the Republic of Vietnam, she initiated an appeal only with respect to the denial of entitlement to service connection for the cause of the Veteran's death. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although any additional delay is regrettable, the Board finds that a remand is necessary for additional development. First, the appellant has identified outstanding VA records that are potentially relevant to the appeal. In an October 2012 statement, she explained that the Veteran was a patient at the VA Outpatient Clinic in Allentown, Pennsylvania, prior to his hospitalization and final treatment prior to his death. She expressly stated that the Veteran became ill in March 1999 and first sought treatment at VA at that time. Following an initial course of antibiotics and follow-up blood work, he was then transferred to a private facility for hospitalization. A review of the record reflects that these VA treatment records prior to his eventual hospitalization have not yet been obtained. As such, a remand is necessary so that the relevant records can be obtained in accordance with VA's duty to assist. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (indicating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). Second, after carefully considering the evidence of record, the Board finds that a VA medical opinion must also be obtained on remand. The Federal Circuit has provided that 38 U.S.C.A. § 5103A(a), and not (d), applies to DIC claims, including claims for entitlement to service connection for the cause of the Veteran's death. Section 5103A(a) indicates that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Section 5103A(a) "only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C.A. § 5103A(a)) (citations omitted). Here, a review of the record reflects that the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. Furthermore, even though service connection was not in effect for diabetes prior to his death, he had a confirmed diagnosis of diabetes and this disability is on the list of conditions that are presumed to have been caused by in-service herbicide exposure. The appellant's representative submitted two articles discussing the potential relationship of diabetes and cancer, as well as cancer-related mortalities. Additionally, the appellant submitted a March 2012 statement from Dr. K.A. stating that the Veteran had small intestine malignant melanoma and that, "[n]ot knowing the side effects of Agent Orange[,] I cannot rule out that the agent was dormant in his body." However, there is insufficient medical evidence of record for the Board to determine whether the Veteran's immediate cause of death of cardiac arrest and other significant conditions of cancer of the brain, liver, etc., that may have contributed to his death are either directly related to herbicide exposure or the Veteran's diagnosis of diabetes. In light of the above, the Board determines that an opinion is needed to ascertain (1) whether the Veteran's death may have been related to his presumed in-service exposure to herbicides and (2) whether the Veteran's diabetes involved an active process affecting a vital organ. With regard to the latter opinion, a service-connected disability involving an active process affecting a vital organ may be considered a contributory cause of death, even when the primary cause of death appears "unrelated" to that disability, if the service-connected disability results in "debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death." 38 C.F.R. § 3.312(c)(3). Moreover, even if a non-service-connected primary cause of death is "by [its] very nature . . . so overwhelming that eventual death can be anticipated irrespective of coexisting conditions," a service-connected disability may still be considered a contributory cause of death if there is "a reasonable basis for holding that [the] service-connected condition was of such severity as to have a material influence in accelerating death." 38 C.F.R. § 3.312(c)(4). Such a "reasonable basis" may exist if the service-connected disability "affected a vital organ and was of itself of a progressive or debilitating nature." Id. However, minor service-connected disabilities, such as those of a static nature or not materially affecting a vital organ, are generally not held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims file records from the Allentown, Pennsylvania, VA Outpatient Clinic dated from March 1999 through September 1999, as well as any records prior to that date that may be potentially relevant to the cause of the Veteran's death. 2. Obtain an opinion regarding the nature and etiology of the Veteran's cause of death. The claims file [i.e. both the paper claims file and any relevant medical records contained in the electronic file(s)] must be provided to and reviewed by the examiner. The examiner is requested to provide an opinion as to the following: (a) Whether it is at least as likely as not that the Veteran's diabetes (1) involved an active process affecting a vital organ and resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death or was of such severity as to have a material influence in accelerating death, or (2) otherwise caused the death of the Veteran or contributed substantially or materially, combined, aided or lent assistance to cause the death of the Veteran. (b) Whether the Veteran's conceded exposure to herbicides caused the death of the Veteran or contributed substantially or materially, combined, aided or lent assistance to cause the death of the Veteran. In this regard, is it at least as likely as not that the Veteran's small intestine malignant melanoma which metastasized to other organs is etiologically related to his presumed in-service herbicide exposure? In so opining the examiner is advised that the Board is cognizant that small intestine malignant melanoma with metastasis to other organs is not a presumptive disease associated with herbicide exposure. The Agent Orange Updates, however, use only a general statistical analysis to determine whether a disease should be service connected on a presumptive basis and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. The Board seeks a medical opinion on the likelihood that THIS Veteran's small intestine malignant melanoma with metastasis to other organs is related to HIS herbicide exposure given HIS medical history, family history, absence of other risk factors, etc. and whether such disease caused or contributed to his death. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond. 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 U.S. 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).