Citation Nr: 1803062 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-11 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death, to include as due to ionizing radiation exposure. 2. Entitlement to DIC under 38 C.F.R. § U.S.C. 1318 (2017). 3. Entitlement to death pension. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1945 to October 1947, with service in the Pacific during World War II. He is the recipient of the WWII Victory Medal. Regrettably, he died in January 2013. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a May 2013 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2017, the appellant and her son testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding the Veteran's cause of death claim, service connection can be established under 38 C.F.R. § 3.303(d) (2017) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 (2017), if the condition at issue is a radiogenic disease, such as cancer. Here, the Veteran had multiple diagnoses of cancer, including lung and skin cancers. Moreover, the appellant contends that the Veteran's cancers were associated with his military service. Specifically, she contends that his exposure to radiation during his service in World War II caused his cancers. Although the Veteran's death certificate lists sepsis, pneumonia, and dementia as the causes of his death, the appellant asserts that the Veteran's dementia was aggravated by his diagnosed cancers, and that the Veteran's skin and lung cancer ultimately contributed to his death. See, e.g., August 2017 private medical opinion. Thus, the Board finds that a dose estimate for his radiation exposure is needed. After a dose estimate is obtained, the case may be referred to the VA Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's skin and/or lung cancer resulted from radiation exposure during service. 38 C.F.R. § 3.311(c) (2017). The Under Secretary for Benefits should address an August 2017 private opinion that the Veteran's cancers caused or led to his death. However, the Board notes that if the dose estimate is zero, VA is not required to forward the claim to the Under Secretary for Benefits. See Wandel v. West, 11 Vet. App. 200 (1998). With regards to the remaining issues on appeal, the Board finds the issues are inextricably intertwined with the claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on those issues should be deferred pending final dispositions that matter. 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 have provided treatment to the Veteran for his skin and lung cancer, if necessary. 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 obtain any outstanding VA treatment records. 2. In accordance with 38 C.F.R. § 3.311 (a)(2)(iii), forward to the Under Secretary of Health the Veteran's records concerning his radiation exposure, including any service records, lay statements, testimony, and buddy statements regarding radiation exposure. The Under Secretary of Health should prepare a radiation dose estimate, to the extent feasible based on the Veteran's active duty service. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the appellant is required regarding specifics of the Veteran's alleged exposure, she should be contacted and asked to provide the information. 3. If the above-requested development results in a positive dose estimate, the case should then be referred to the Under Secretary for Benefits for an opinion under 38 C.F.R. § 3.311(c) regarding whether it is at least as likely as not that the Veteran's cancers, to include skin and lung, resulted from exposure to radiation in service. The Under Secretary for Benefits should discuss the August 2017 private doctor's opinion that the Veteran's exposure to radiation could have contributed to the Veteran's cancer, and ultimate demise. 4. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 5. 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. 6. 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 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 or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).