Citation Nr: 1802608 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-13 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney WITNESSES AT HEARING ON APPEAL The appellant and J.B. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967 and from April 1971 to February 1973. The Veteran died in September 2014, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case was subsequently transferred to the jurisdiction of the Atlanta, Georgia RO. In August 2017, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 lists the immediate cause of death as chronic liver disease. During his lifetime, he was service-connected for bilateral hearing loss, intervertebral disc syndrome, a left ankle disability, a lower left extremity sciatic nerve disability, a lower right extremity sciatic nerve disability, lumbar degenerative disc disease, tinnitus, degenerative arthritis of the right foot, right ankle strain, fragment wound scars of both legs, a scar on the left foot, erectile dysfunction, and bladder dysfunction. He was not service-connected for any liver disability, and his service treatment records are negative for any complaints treatment, or diagnosis of such a disorder. There is also no record of any treatment for a liver disorder in service. The appellant has contended that the Veteran's chronic liver disease developed as a result of herbicide exposure in service. She testified that the Veteran did not have many of the common causes of liver disease prior to his death, and her representative submitted medical literature, which noted a relationship between liver disease and herbicide exposure. Herbicide exposure is presumed for veterans who served in active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. § 3.307(a)(6)(iii). A DD-214 reflects that he had foreign service in Vietnam during the requisite time period; therefore, he is presumed to have been exposed to herbicides during such service. Although chronic liver disease is not on the list of diseases that VA has associated with herbicide exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See 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). Therefore, the Board finds that a VA medical opinion is necessary to address this theory of entitlement. During the hearing, the appellant's representative also asserted that the Veteran had coronary atherosclerotic changes due to herbicide exposure that may have contributed to his death. VA clinical records from September 2014 show that the Veteran was noted to have coronary artery atherosclerotic disease. Ischemic heart disease is one of the diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Thus, on remand the VA examiner should also address whether the Veteran's coronary artery atherosclerotic disease caused or contributed to his death. 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 for a liver or heart disorder. 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 VA treatment records which have not yet been associated with the claims file. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a VA medical opinion to determine the nature and etiology of the cause of the Veteran's death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, the August 2017 hearing transcript, and the medical literature submitted by her representative. It should be noted that the Veteran and the appellant are considered competent to attest to factual matters of which they had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or the appellant, the examiner should provide a fully reasoned explanation. The examiner should address whether it is at least as likely as not that the Veteran's liver disease was causally or etiologically related to his military service, to include herbicide exposure therein (regardless of the fact that such an association may not be presumed). In so doing, he or she should consider the August 2017 hearing testimony and the medical literature submitted by the appellant's representative. The examiner should also address whether the Veteran's coronary artery atherosclerotic disease 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 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain 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 Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).