Citation Nr: 1600032 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 11-33 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from December 1951 to June 1977. He also had a period of active duty from June 1951 to July 1951 and in October 1951 and November 1951. He died in April 2010, and the appellant is claiming benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. A videoconference hearing was scheduled before the Board in October 2015. In a statement submitted on the date of the scheduled hearing, the appellant's representative indicated that the appellant informed her that she was unable to attend the hearing due to the length of the drive to the RO. Therefore, the representative requested that the appellant's hearing request be withdrawn. Thus, the Board considers the hearing request withdrawn pursuant to 38 C.F.R. § 20.702(d) (2015). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals documents that are duplicative of the evidence in the VBMS file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's death certificate listed the immediate cause of death as fungal pneumonia. The underlying causes were identified as refractory anemia with excess blast in transformation and myelodysplastic syndrome. At the time of the Veteran's death, service connection was established for the following disabilities: status-post polypectomy and nasal septum defect, rated as noncompensable; chronic maxillary and ethmoid sinusitis, rated as noncompensable disabling; and status-post operative rectal polyps, rated as noncompensable. In her December 2011 substantive appeal, the appellant contended that the Veteran developed myelodysplastic syndrome as a result of exposure to Agent Orange during his Vietnam service. In the alternative, in a May 2015 VA Form 646, the appellant's representative asserted that the Veteran was exposed to radiation from electromagnetic transmitters during his service as an electronic warfare officer in flight status and that his myelodysplastic syndrome was caused by that radiation exposure. A review of the record shows that no development has been undertaken with respect to the claimed radiation exposure. Therefore, the claim must be remanded for additional development, to include obtaining any records pertaining to whether the Veteran had radiation exposure in service. The Board further finds that a medical opinion is needed in this case to address whether the Veteran's cause of death was related to his herbicide exposure in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In addition, in an October 2015 statement, the appellant's representative requested that the record be held open for a period of 90 days to allow for the submission of additional evidence. To date, no additional evidence has been submitted. Nevertheless, the Board finds that there is no prejudice in remanding the case, as the appellant and her representative will still have the opportunity to submit additional evidence while the development is being completed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who provided treatment for the Veteran's fungal pneumonia, myelodysplastic syndrome, and refractory anemia. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 2. The AOJ should attempt to verify any radiation exposure that the Veteran may have had during his service, to include as an electronic warfare officer in flight status. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims folder to a VA examiner for a medical opinion to address the cause of the Veteran's death. The VA examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and the appellant's assertions. The appellant has asserted that the Veteran's myelodysplastic syndrome was a result of in-service herbicide exposure and/or radiation exposure. It is presumed that the Veteran was exposed to herbicides during his service in Vietnam. The appellant's representative has also claimed that the Veteran's myelodysplastic syndrome developed as a result of radiation exposure in service. It should be noted that the appellant is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran's service-connected status-post polypectomy and nasal septum defect, chronic maxillary and ethmoid sinusitis, and status-post operative rectal polyps caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided or lent assistance to his death. The examiner should also state whether it is at least as likely as not that the Veteran's fungal pneumonia, refractory anemia with excess blast in transformation, and myelodysplastic syndrome were related to his military service, to include his herbicide exposure therein (notwithstanding the fact that such an association may not be presumed) and any potential radiation exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).