Citation Nr: 1604556 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 14-22 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert Davis, Attorney ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marines from January 1966 to January 1968, including in Vietnam and at Camp Lejeune. The appellant is the widow of the Veteran, who died in August 2009. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the claim of service connection for cause of the Veteran's death. A review of the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) was conducted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant essentially contends that the Veteran's death was caused by lung cancer, which was due to Agent Orange, or alternatively due to contaminated water exposure while he was stationed at Camp Lejeune. Medical records from Carolina Hematology/Oncology Associates show that Veteran had a diagnosis of suspected pancreatic cancer with metastatic disease to the liver and lungs. A July 2009 scan noted multiple small pulmonary nodules at the lung bases consistent with metastatic disease. The Veteran's death certificate lists the immediate cause of death as liver failure due to metastatic disease to the liver, due to pancreatic cancer. The appellant, however, contends that lung cancer was also a "critical condition that was found about the same as the pancreatic cancer" and thus contributed to the Veteran's death, and that Veteran served in Vietnam and thus was exposed to Agent Orange. See January 2012 DIC application. Even though pancreatic cancer is not one of the diseases listed under 38 C.F.R. § 3.309, the appellant can still be granted service connection for the cause of the Veteran's death if pancreatic cancer was related to his Agent Orange exposure, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). With regard to veterans who served at Camp Lejeune between 1957 and 1987, VA has recognized potential exposure to contaminants present in the base water supply prior to 1987. VA Adjudication Procedure Manual, M21-1, Part III, Subpart iii, Chapter 2, Section E.7.a. Based on the Veteran's service at Camp Lejeune during the above time frame, the Board finds that a medical opinion is necessary to determine the etiology and relationship, if any, between the claimed pancreatic cancer with metastatic liver and lung disease and the Veteran's period of active service, to include as a result of exposure to contaminated drinking water at Camp Lejeune, or due to Agent Orange exposure. Accordingly, the case is REMANDED for the following actions: 1. Obtain a medical opinion, from a clinician with the appropriate expertise concerning whether whether the pancreatic cancer with metastatic disease to the liver and lungs is related to service. The clinician should review the electronic records on Virtual VA and VBMS and should note that review in the examination report. The clinician should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the deceased Veteran's pancreatic cancer with metastatic lung and liver disease is related to active service including presumed Agent Orange exposure in Vietnam and the Veteran's service at Camp Lejeune during the period of water contamination. In providing this opinion, the examiner's attention is directed to the Veteran's private treatment records in VBMS from Caroline Hematology/Oncology Associates, and VAMC Clarksburg Records in Virtual VA. In addition, the examiner's attention is directed to the appellant's argument with attachments of March 2015 and June 2015 in which it is asserted that medical evidence demonstrates that certain dioxin exposure can alter the membrane of the pancreas and that medical research is available linking pancreatic cancer to the contaminants found in Camp Lejeuene drinking water. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (service connection based on direct causation may still be established even if the claimed disorder is not presumed to be related to herbicide exposure). The examiner is informed that 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. 2. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an 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). _________________________________________________ S.S. TOTH 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).