Citation Nr: 1757085 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-06 987A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of death of the Veteran. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from September 1989 to October 2003. The Veteran also had five years and ten months of prior active service. The Veteran died in December 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant testified before the undersigned at a June 2017 Travel Board hearing. A hearing transcript is of record. The Appellant's representative submitted a June 2017 statement that raises issue as to whether a June 2009 rating decision contained clear and unmistakable error (CUE). The CUE issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In June 2009, the RO denied service connection for the Veteran's cause of death. The Appellant neither initiated an appeal nor submitted additional evidence for the claim within one year of the June 2009 rating decision. In January 2013, the Appellant submitted another application for service connection for the Veteran's cause of death, which was subsequently denied by the RO May 2013 for lack of new and material evidence. See 38 C.F.R. § 3.156. The Appellant subsequently perfected an appeal of the May 2013 rating decision. In the June 2009 rating decision, the RO found that a service-connected disability was not a primary or contributing factor to the Veteran's death. The RO specifically noted that it reviewed the Veteran's service treatment records (STRs) from November 1983 to October 2003, the Veteran's December 2005 death certificate, and a December 2005 statement from the Veteran's private physician stating that the Veteran was diagnosed with metastatic pancreatic carcinoma that may have been caused by exposure to phosgene gas and asbestos while in service. The RO found that none of the Veteran's service-connected disabilities at the time (right elbow synovitis, right shoulder tendonitis, lumbar strain, tinnitus, sinusitis, gastroesophageal reflux disease, right hand finger fractures, costochondritis, bilateral eye disability, eye surgery residuals, bilateral leg varicose veins, testicular torsion, and left eyebrow scar) corresponded to any of the Veteran's causes of death. The listed causes of death on the Veteran's death certificate, in order from immediate to underlying, were cardio pulmonary collapse, protein deficient malnutrition, and metastatic pancreatic cancer. Asbestos and phosgene gas exposure were listed as other contributing factors. While the RO conceded that the Veteran's STRs reflected asbestos exposure, the RO found the Veteran had no service-connected disabilities due to asbestos exposure. The RO also stated that, "[t]here is no indication of exposure to phosphene gas." The Board notes phosphine and phosgene are separate compounds, but the record reflects the Veteran previously contested that he was exposed to phosgene gas in his original claim. The RO ultimately found that the Veteran's pancreatic cancer, which was not service-connected, did not meet the criteria for service-connection on any basis. The Veteran's STRs in the Veteran's Benefits Management System (VBMS) are listed as associated with the file in six, separate entries dated June 25, 2014-long after the June 2009 rating decision. While the dates of the treatment records contained therein correspond to the dates of the STRs listed as reviewed in the June 2009 rating decision, the Board notes the Veteran reported, "I was exposed to phosgene gas in 1985 while welding a refrigirent [sic] line" on an undated medical surveillance questionnaire while in service. June 2014 STR-Medical at 6. Such a report runs counter to the RO's June 2009 finding of "no indication" of any in-service exposure to phosgene gas. These circumstances, taken together, call into question whether the RO possessed all of the Veteran's STRs at the time of its June 2009 rating decision. The abovementioned discrepancies indicate that at least some of the Veteran's STRs may constitute relevant service department records that were not associated with the claims file when VA decided the claim in June 2009. See 38 C.F.R. § 3.156(c). If so, such STRs may serve as new and material evidence to reopen the Appellant's claim. However, before the Board can make a determination as to whether new and material evidence has been received to reopen the claim on appeal, a finding must be made as to whether the entirety of the STRs currently in the electronic record were reviewed prior to promulgation of the June 2009 rating decision. Accordingly, the case is REMANDED for the following action: 1. Produce a formal written finding as to whether the entirety of the Veteran's STRs listed as associated to VBMS on June 25, 2014 were reviewed prior to promulgation of the June 2009 rating decision denying service connection for the Veteran's cause of death. Associate this finding to the electronic record. 2. After completing the above and any other necessary development, readjudicate the issue on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Appellant and her representative and allow an appropriate period for response. 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. §§ 5109B, 7112 (2012). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).