Citation Nr: 1527787 Decision Date: 06/29/15 Archive Date: 07/09/15 DOCKET NO. 14-05 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1946 to October 1970. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. In the December 2012 rating decision, the St. Paul RO also denied entitlement to death pension benefits, and entitlement to accrued benefits. In her November 2013 notice of disagreement, the appellant expressed disagreement only with the denial of entitlement to "death benefits," and contended that the Veteran's death was related to a service-connected disability. Accordingly, the Board finds the appellant did not appeal the denials of her claims for death pension or accrued benefits, and thus, those issues are not currently before the Board. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2014. A transcript of the hearing is contained on the Virtual VA paperless claims processing system (Virtual VA). Virtual VA also contains the Veteran's death certificate; the appellant and Veteran's marriage license; the appellant's April 2011 claim; a June 2011 Veteran Claims Assistance Act notice letter; a July 2011 VA Form 21-4142; an August 2011 VA denial notification letter; an August 2011 claim and the appellant's full marital history; a May 2012 informal and May 2012 formal claim for accrued benefits; the December 2012 rating decision; the November 2012 notice of disagreement; the November 2013 statement of the case; and private treatment records from multiple providers. The Veterans Benefits Management System (VBMS) contains an August 2014 VA Form 21-22 appointing the American Legion as the appellant's representative. Other documents on Virtual VA and VBMS are duplicative of the evidence of record, or are not relevant to the issue before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a July 2011 VA Form 21-4142, Authorization and Consent to Release Information to VA, the appellant listed ten different medical providers and three different medical facilities as having provided treatment to the Veteran. See also August 2011 Application for Accrued Amounts Due a Deceased Beneficiary (again listing eight of the medical providers). Although numerous private treatment records were submitted by the appellant and are associated with the evidentiary record, it does not appear all relevant treatment records are of record. Particularly, the evidence of record indicates a Dr. J.P. and a Dr. T. had regularly provided treatment and testing regarding the Veteran's service-connected prostate cancer. See, e.g., April 2002 Los Palos Medical Associates treatment note. However, the scanned treatment records from Dr. J.M.P. dated April 1997 to October 2010, copies of which appear to have been included with the Veteran's treatment records received from Los Palos Medical Associates, are unclear and therefore difficult to read. Further, it does not appear that any treatment records from a Dr. T. are of record. In November 2014, the appellant submitted a medical opinion from Dr. J.S.V. Of record are two letters from the Central Coast Brain and Spine Associates dated in October and December 2010 regarding the Veteran's care, addressed to Dr. J.S.V. These letters indicate that Dr. J.S.V. treated the Veteran, however, no treatment records from Dr. J.S.V. appear to be of record. On remand, the AOJ should make appropriate efforts to obtain all outstanding relevant private treatment records. Further, in the July 2011 VA Form 21-4142, the appellant listed a Dr. A. at the VA Monterey Clinic. VA treatment records from the Monterey Community Based Outpatient Clinic (CBOC) are associated with the evidentiary record, but appear to only be dated up to October 1993, and then from January 2003 to June 2004. On remand, the AOJ should obtain all outstanding relevant VA treatment records. The Veteran's death certificate lists his primary cause of his death as respiratory arrest, with underlying causes of hepatic failure and metastatic colon cancer. The Veteran's private treatment records indicate the Veteran's colon cancer metastasized to the liver, and possibly to the lungs. See, e.g., December 2010 Los Palos Oncology & Hematology office visit note; December 2010 Los Palos Oncology & Hematology consultation note. The appellant contends that the Veteran's service-connected prostate cancer developed into his fatal colon and liver cancer. See, e.g., August 2014 videoconference hearing testimony; May 2012 claim. Alternatively, the appellant contends that the herbicide exposure which caused the Veteran's service-connected prostate cancer also caused his fatal colon and/or liver cancer. See August 2014 videoconference hearing testimony; see also June 1998 rating decision (service connection granted for prostate cancer on a presumptive basis due to herbicide exposure). In a November 2014 statement, Dr. J.S.V. opined, "I think the [Veteran]'s cancers were multifactorial and that exposure to Agent Orange was one of those factors." However, Dr. J.S.V. did not provide a rationale for his opinion regarding the Veteran's specific case. Instead, Dr. J.S.V. generally stated that the American Cancer Society recognizes exposure to Agent Orange as a factor in both prostate and colon cancers, and submitted a copy of an American Cancer Society article regarding Agent Orange. On remand, the AOJ should obtain a medical opinion from an appropriate medical examiner to determine whether the Veteran's service-connected prostate cancer caused or contributed to the causes of the Veteran's death, whether the Veteran's fatal colon and/or liver cancers were caused or aggravated by his service-connected prostate cancer, and whether the Veteran's fatal liver and/or colon cancers were otherwise related to the Veteran's active duty service, to include herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the appellant to identify any outstanding relevant private treatment records regarding the Veteran's service-connected disabilities and/or the causes of his death. The AOJ should undertake appropriate development to obtain all outstanding pertinent private treatment records, to include clearer copies of treatment records from Dr. J.M.P. dated April 1997 to October 2010, and any treatment records from October 2010 to the Veteran's death in March 2011; treatment records from Dr. T regarding the Veteran's prostate cancer; and all treatment records from Dr. J.S.V. The appellant's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the Veteran's records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the appellant and her representative of the status of the Veteran's records, and give the appellant the opportunity to obtain the records on her own. 2. The AOJ should obtain all outstanding relevant VA treatment records, to include records from the Monterey CBOC dated from October 1993 to January 2003, and from June 2004 until the Veteran's death in March 2011. All obtained records should be associated with the evidentiary record. 3. After the above development has been completed, and after all records obtained have been associated with the evidentiary record, the AOJ should obtain a medical opinion from a physician examiner with appropriate expertise to determine the nature and etiology of the cause(s) of the Veteran's death. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the physician. The medical opinion must include a notation that this record review took place. After reviewing the evidentiary record, the examiner is asked to respond to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's service-connected prostate cancer caused or contributed to the causes of the Veteran's death? The examiner should address whether any debilitating effects of the Veteran's service-connected prostate cancer made the Veteran materially less capable of resisting his fatal disease or had a material influence in accelerating his death. b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's colon and/or liver cancer was caused by his service-connected prostate cancer? The examiner should specifically address the appellant's contention that the Veteran's service-connected prostate cancer developed into his fatal colon and then liver cancer. See, e.g., August 2014 videoconference hearing testimony; May 2012 claim. c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's colon and/or liver cancer was aggravated by his service-connected prostate cancer? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. d) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cause of death is otherwise related to the Veteran's military service? The examiner should specifically address the November 2014 opinion by Dr. J.S.V. that the Veteran's cancers were multifactorial, and that exposure to Agent Orange was one of those factors. The examiner should also specifically address the American Cancer Society article submitted by Dr. J.S.V. regarding Agent Orange exposure. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran was competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. After the above development has been completed, readjudicate the claim. If the claim remains denied, provide the appellant and her representative with a supplemental statement of the case, and return the case to the Board. 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 2014). _________________________________________________ MICHAEL LANE 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).