Citation Nr: 1644435 Decision Date: 11/23/16 Archive Date: 12/02/16 DOCKET NO. 14-14 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for stomach cancer. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to March 1975 in the United States Marine Corps. His awards include the National Defense Medal and the Good Conduct Medal. He passed away in August 2012. The appellant is the Veteran's surviving spouse and has been found to be eligible as a substituted claimant in the Veteran's appeal. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina and Philadelphia, Pennsylvania, respectively. The March 2012 rating decision denied the claim for compensation under 38 U.S.C.A. § 1151 for stomach cancer and the July 2013 rating decision denied the claim of entitlement to service connection for the cause of the Veteran's death. In February 2016 the Board remanded the case to afford the appellant a videoconference hearing before a Veterans Law Judge of the Board (VLJ). In July 2016 the appellant testified at a videoconference hearing before the undersigned VLJ. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, the appellant asserts that had VA properly treated the Veteran after his initial stomach cancer diagnosis, his disease would not have progressed to an untreatable stage. Concerning the cause of the Veteran's death, she maintains that his death was caused by exposure to contaminated water while serving at Camp Lejeune. The Veteran's service personnel records reflect that he graduated from basic food service school at Camp Lejeune in January 1974. During service, he complained of a painful tender mass in his left groin beginning in approximately December 1973. Subsequent examination revealed a left inguinal hernia and he underwent a left inguinal herniorrhaphy and left orchidopexy in April 1974. He subsequently complained of left testalgia and developed urethritis. A left orchiectomy was performed in November 1974 and the Veteran recovered well. The Veteran's January 1975 separation examination revealed no defects and he reported that he was in good health at that time. A March 1976 VA examination noted a normal digestive system with a well-healed left lower abdominal scar. In May 2011 the Veteran presented to a private emergency room following several episodes of vomiting. Gastrointestinal bleeding and severe anemia were noted. A gastroscopy study taken the next day showed a large ulcerated mass near the gastroesophageal junction. A biopsy taken the next day revealed possible carcinoma of the stomach, and a diagnostic imaging report showed benign hepatic and renal cysts. A pathology report showed moderately differentiated gastric-type adenocarcinoma with an estimated onset date of December 2010. In June 2011 the Veteran presented to the Columbia, South Carolina VA Medical Center (VAMC) and noted his prior emergency room visit due to gastrointestinal bleeding. A computerized tomography (CT) scan revealed a gastric carcinoma. The Veteran then began chemotherapy and radiation treatments. An October 2011 VA CT scan of the thorax showed significant improvement in the appearance of the disease since the June CT scan, in that the lesion had reduced in size. Given this, in November 2011, a VA surgeon noted that although the Veteran was a candidate for resection, he wanted to perform a positron emission tomography (PET) scan to rule out distant metastases which would make the neoplasm non-resectable, and to conduct another endoscopy study to visualize the exact location of the lesion, because the Veteran would have to be referred to a separate facility for possible resection if the legion was close to the gastroesophageal junction. In December 2011, the Veteran underwent an upper endoscopy with ultrasound of the stomach which revealed gastric cancer of the lesser curve. The mass appeared approximately 3 centimeters in size but was difficult to estimate due to the infiltrative nature of the cancer. A PET scan showed no metastases. In January 2012, the Veteran was consented for surgical removal of the remaining lesion. However, a diagnostic abdominal laparoscopy, biopsy, and esophagogastrophy performed prior to the surgery revealed multiple metastases in the intraperitoneal cavity. Due to these metastases, the VA physicians concluded that removal of the lesion would not be curative. The Veteran subsequently continued chemotherapy and radiation. In July 2012 he was admitted to a private emergency room with acute renal failure. The Veteran's death certificate states that his causes of death were cardiac arrest due to or as a consequence of pulseless electrical activity, in turn due to or as a consequence of metastatic cancer. Since the medical evidence of record is insufficient to decide the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for stomach cancer and to determine the etiology of the Veteran's death, the Board finds that medical opinions must be obtained prior to the resolution of the claims on appeal. Accordingly, the case is REMANDED for the following actions: 1. Send the claims file to an oncologist who did not treat the Veteran. After reviewing the claims file the oncologist should respond to the following: a. Is it at least as likely as not (50 percent probability or greater) that VA treatment caused or contributed to the Veteran's death from metastatic cancer, to include a failure to properly treat the condition? Please explain why or why not. In providing this opinion, the oncologist should comment on the significance, if any of (1) the June 2011 CT scan showing gastric carcinoma, (2) the October 2011 CT scan showing that the lesion had reduced in size, (3) the November 2011 VA surgeon's decision to obtain a PET scan and endoscopy study prior to resection, and (4) the January 2012 decision against resection because pre-surgical testing revealed multiple metastases in the intraperitoneal cavity. b. If the VA treatment caused or contributed to his death from metastatic cancer, what is the likelihood that there was carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA's part in treating the Veteran's stomach cancer? Please explain why or why not. In providing this opinion, the oncologist is asked to address (1) the propriety of the treatment course noted above, to include identifying what the standard of care is in treating a patient with the Veteran's medical picture, and (2) whether the VA clinicians failed to treat the Veteran's condition in accordance with that standard of care, to include performing a resection procedure when such could have been curative. c. Is it at least as likely as not that the Veteran's metastatic cancer is related to service? The oncologist should specifically discuss the appellant's contention that the Veteran's cancer was related to his exposure to contaminated drinking water while stationed at Camp Lejeune in 1974. A rationale for any opinions expressed should be set forth. If the oncologist cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ S. C. KREMBS 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).