Citation Nr: 1547990 Decision Date: 11/13/15 Archive Date: 11/25/15 DOCKET NO. 04-27 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Michael E. Banister, Attorney ATTORNEY FOR THE BOARD J. Tittsworth, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. He died in July 1983. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 1983, the appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death. VA denied that claim in a September 1983 rating decision. The appellant sought to reopen her claim in May 1989. In April 1994, VA again denied the claim. The appellant did not appeal. The appellant again sought to reopen her claim in February 2003. Thereafter, in April 2006, April 2008, and September 2009 the Board remanded the issue for further development. In August 2010, the Board reopened the claim for new and material evidence but denied the claim for service connection for cause of death on the merits. The appellant appealed the Board's August 2010 denial to the United States Court of Appeals for Veterans Claims (Court). In June 2011 the Court granted a Joint Motion for Remand, vacated the August 2010 decision, and remanded the appeal to the Board for compliance with its instructions. Following a November 2011 remand by the Board, the appellant's claim was again denied in a September 2012 Board decision. The appellant again appealed, and in July 2013, the Court granted a new Joint Motion for Remand. In July 2014, the Board remanded the claim to request additional medical records and to obtain a VA medical opinion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in July 1983 due to hepatoma which the appellant alleges was the result of his in-service exposure to Agent Orange and hepatitis. As noted above, the Board remanded the claim in July 2014. Therein the Board instructed the RO to contact Montgomery and Birmingham, Alabama VA Medical Centers and request legible copies of all of the Veteran's VA treatment records dated between July 1968 and July 1983. The Remand directed that, in the event the records were no longer stored or available at the named VA medical centers, the RO was to request that each facility identify the Federal Records Center where the records could have been retired. The RO was to then request records from any identified source until all avenues of development are exhausted, including contacting the National Personnel Records Center in St. Louis, Missouri, as well as the Federal Records Center in Ellenwood, Georgia. The claims file includes negative responses from both the Montgomery and Birmingham, Alabama VA medical centers. However, the record is absent any documented attempts to comply with the remainder of the Board's directives, including, specifically, contacting the Ellenwood Federal Records Center, or any other Federal Records Center identified by a VA Medical Center where the relevant treatment records may have been retired to, and requesting records from the same. Secondly, the Board remanded the claim in July 2014 to secure a VA medical opinion from a gastroenterologist who specialized in liver disease. Although a VA medical opinion was provided in May 2015, it is unclear whether the VA physician who authored the opinion is a gastroenterologist who specializes in liver disease. Clarification is therefore required. If the physician who authored the May 2015 VA medical opinion is not a gastroenterologist who specializes in liver disease, VA must secure a medical opinion in accordance with the Board's remand directives. Finally, in September 2015, the appellant's representative states he has not been provided a copy of the May 2015 VA medical opinion. This medical opinion must be provided to the appellant and her representative, and they must be provided the opportunity to respond. Accordingly, the case is REMANDED for the following action: 1. The RO should again contact the Montgomery and Birmingham, Alabama VA Medical Centers in an attempt to secure the Veteran's VA treatment records dated between July 1968 and July 1983. If these records are no longer stored or available at the named VA Medical Centers, then each facility must be requested to identify the Federal Records Center where these records could have been retired. The RO must continue to request these records from all identified sources until all avenues of development are exhausted. These requests must include, but are not limited to contacting the National Personnel Records Center in St. Louis, Missouri, as well as the Federal Records Center in Ellenwood, Georgia. All attempts to secure this evidence must be documented in the claims folder by the RO. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, secure a copy of the May 2015 VA physician's curriculum vitae in order to secure documentation showing that the physician is a gastroenterologist who specializes in liver disease. If she is not, the RO must secure a VA medical opinion from a gastroenterologist who specializes in liver diseases. The physician must be provided access to the claims folder, a copy of this remand, as well as any Virtual VA and VBMS file. The physician should indicate receipt and review of these records in his or her final report. The gastroenterologist is hereby informed that the Veteran is presumed to have been exposed to herbicides, including Agent Orange. In any report provided the examiner must consider that the Veteran was exposed to hepatitis B during service, and that he tested positive for the hepatitis A antigen in December 1981. After thorough review of the record, the gastroenterologist is to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hepatoma was etiologically related to service, including due to his presumed herbicide exposure and documented exposure to hepatitis B. The gastroenterologist must provide a detailed rationale explaining the scientific principles that underlie his or her opinion. A complete and fully reasoned rationale is required for any and all opinions expressed. If the gastroenterologist determines that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the psychiatrist does not have the necessary knowledge or training. 3. Provide the appellant and her representative a copy of the May 2015 VA medical opinion and any subsequent VA medical opinion. Provide the parties a reasonable period of time within which to respond. 4. After completing the above, and any other development deemed necessary, readjudicate the appellant's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ DEREK R. BROWN 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) (2015).