Citation Nr: 1804086 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to October 1968. He died in November 2012. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Appellant's claim for service connection for the cause of the Veteran's death. Subsequently, jurisdiction was transferred to the RO in St. Petersburg, Florida, in May 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Although the Board sincerely regrets the further delay, a remand is required in this appeal to pursue additional development to ensure that there is a complete record upon which to decide the Appellant's claim, so that she is afforded every possible consideration. Service connection may be established on a legal presumption based on exposure to herbicide agents, including Agent Orange, where a veteran served on active duty in the Republic of Vietnam (RVN) during the Vietnam era (from January 1962 to May 1975) and has a certain listed disability, including all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), that becomes manifest to a degree of 10 percent or more any time after service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii)(iii), 3.309. Here, the Veteran's DD-214 reflects that he had over two years of foreign service and received the Vietnam Service Medal and Vietnam Campaign Medal. Therefore, he is presumed to have been exposed to herbicide agents during service in Vietnam during the Vietnam Era. The Veteran died in December 2012. His death certificate lists his cause of death as acute myelogenous leukemia. In October 2013, a VA medical opinion was obtained that provided that acute myelogenous leukemia is not a B-cell leukemia. The October 2013 VA opinion was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). While all chronic B-cell leukemias are on the list of diseases presumed service connected in veterans exposed to herbicide agents, acute myelogenous leukemia is not. 38 C.F.R. § 3.309(e) 2017. However, the opinion did not consider that even though the Veteran is not entitled to a presumption of service connection for a disability based on exposure to herbicide agents, service connection can still be established with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). Therefore, the Board finds that a new medical opinion is necessary to fully address the etiology of the Veteran's acute myelogenous leukemia. Further, the Veteran's treatment records from Lee Memorial Health System show that he underwent a CT scan on November 15, 2012, which revealed coronary artery calcifications. He was also shown to have atrial fibrillation with rapid ventricular response and borderline cardiomegaly. See Treatment record from Lawrence E. Isaacs, M.D., dated November 14, 2012. He had a history of atrial fibrillation since March 2008. See VA treatment note, dated March 20, 2008. Ischemic heart disease is among the list of diseases presumed service connected in veterans exposed to herbicide agents. 38 C.F.R. § 3.309(e) 2017. As such, a medical opinion should be obtained as to whether the Veteran had ischemic heart disease, and if so, whether it caused or contributed to cause his death or caused or aggravated his acute myelogenous leukemia. See 38 C.F.R. §§ 3.310, 3.312; see also Appellant's substantive appeal dated in January 2016, wherein she asserted that the Veteran's acute myelogenous leukemia was secondary to the many service related conditions that he had and that he was weakened after years of fighting off other diseases contracted while he was in the military. Finally, the Veteran's complete treatment records from Florida Heart Associates should be obtain on remand. See VA treatment note, dated March 20, 2008. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Make arrangements to obtain the Veteran's complete treatment records from Florida Heart Associates. 2. Thereafter, return the claims file to the VA examiner who provided the October 2013 opinion, or another appropriate examiner, for an addendum opinion. The examiner must provide opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's acute myelogenous leukemia had its clinical onset during active service or is related to any incident of service, to include his conceded exposure to Agent Orange. * The examiner is informed that the fact that acute myelogenous leukemia is not on the list of diseases presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as the Veteran may still establish service connection based on such exposure in this particular case. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran had ischemic heart disease during his lifetime. In providing this opinion, the examiner should note the treatment records from Lee Memorial Health System showing that he underwent a CT scan on November 15, 2012, which revealed coronary artery calcifications. He was also shown to have atrial fibrillation with rapid ventricular response and borderline cardiomegaly. See Treatment record from Lawrence E. Isaacs, M.D., dated November 14, 2012. The Veteran had a history of atrial fibrillation since March 2008. See VA treatment note, dated March 20, 2008. (c) If the examiner determines that the Veteran had ischemic heart disease during his lifetime, (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's ischemic heart disease was an immediate or underlying cause of his death or contributed substantially or materially to cause his death or had a material influence in accelerating death? Were there resulting debilitating effects and general impairment of health associated with the ischemic heart disease that rendered the Veteran materially less capable of resisting the effects of acute myelogenous leukemia? (ii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's ischemic heart disease either (A) caused, or (B) aggravated (i.e., worsened) his acute myelogenous leukemia. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After completing the above, review the report to ensure that it adequately respond to the above instructions, including that it provides an adequate explanation in support of the opinion stated. If the report is deficient in this regard, return the case to the examiners for further review and discussion. 4. Finally, after the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Appellant and her representative should be furnished a supplemental statement of the case (SSOC) and 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). 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). _________________________________________________ P.M. DILORENZO 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).