Citation Nr: 1804264 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-31 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for adenoid cystic carcinoma of the tongue. 2. Entitlement to service connection for vertigo, for accrued benefits purposes. 3. Entitlement to a rating in excess of 60 percent for coronary artery disease, status post angioplasty with hypertension, for accrued benefits purposes. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active duty service from June 1967 to June 1989. He died in March 2013 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and January 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2012, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. In March 2013, the Board remanded the issue of entitlement to service connection for adenoid cystic carcinoma of the tongue for additional development. In July 2013, the Veteran's surviving spouse was recognized as the substituted appellant by the RO pursuant to 38 U.S.C. § 5121A (providing for substitution in some cases if the Veteran died, as here, on or after October 10, 2008) for the purpose of processing the appeal with respect to entitlement to service connection for adenoid cystic carcinoma of the tongue to completion. However, she has not been recognized as a substitute claimant with regard to the remainder of the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the March 2013 remand pertaining to the issue of entitlement to service connection for adenoid cystic carcinoma of the tongue, the Board requested additional development, to include obtaining the Veteran's service personnel records, affording him an opportunity to identify any additional treatment records not associated with the claims file, to include those from Brooks Army Medical Center, and obtaining an etiological opinion. Although a July 2013 deferred rating decision lists actions to be undertaken consistent with the remand, it does not appear that the development has been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As such, the issue is remanded for compliance with the March 2013 remand directives, to the extent possible under the circumstances. With respect to the remaining accrued benefits claims, the Board notes that the record is closed as of the date of the Veteran's death in March 2013. In other words, any evidence received by VA after the date of the Veteran's death may not be considered in adjudicating a claim for accrued benefits. However, records considered in the constructive possession of VA but not physically in the claims file (e.g., outstanding service records or VA treatment records) are an exception to such principle. In this regard, with respect to an increased rating for coronary artery disease status post angioplasty with hypertension, the Veteran was afforded a VA examination in February 2013 in order to ascertain the nature and severity of such disability. At such time, the examiner stated that, because the Veteran's claims file was not available for review, no information about the his current condition was in the temporary folder, other than a November 2012 cardiology record from the William Beaumont Army Medical Hospital in El Paso, and he instead reviewed records in the CPRS/VISTA electronic system, which is the repository for VA treatment records. In this regard, it is unclear whether the Veteran's complete VA treatment records have been associated with the file. Consequently, as such may be relevant to the increased rating claim, they should be obtained on remand. With respect to service connection for vertigo, and although the February 2013 VA ear examiner stated that the episodes described by the Veteran were more likely attacks of syncope related to his service-connected heart disease, the February 2013 VA heart examiner stated that the Veteran's vertigo was not related to service-connected heart disease, and it was noted to be more than likely either secondary to his tongue cancer treatment, to include soft tissue changes in the neck subsequent to the radiation treatment, or possibly a metastatic process to the brain that may have not yet been evident on brain and vascular flow studies. As such, the issue of entitlement to service connection for vertigo, for accrued benefits purposes, is inextricably intertwined with the issue of service connection for adenoma of the tongue. Thus, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Similarly, the issue of entitlement to a TDIU, for accrued benefits purposes, is inextricably intertwined with the other issues remanded. Thus, it must be remanded as well. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The appellant should be given an opportunity to identify any additional medical records not already associated with the claims file pertinent to the issue of entitlement to service connection for adenoid cystic carcinoma of the tongue, to include those from Brooks Army Medical Center. Thereafter, obtain all identified treatment records, to include those from the El Paso VA facility dated from November 2012 to the present and Brooks Army Medical Center. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding treatment records, the claims file, to include a copy of this remand, should be forwarded to an appropriate medical professional to offer an etiological opinion regarding the Veteran's adenoid cystic carcinoma of the tongue. The examiner should review of the Veteran's claims file, to include his allegations of exposure to industrial solvents as well as his service personnel records detailing his duties, the June 2009 and October 2012 opinions from the Veteran's treating oncologists, and the occupational exposure study submitted by the Veteran. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's adenoid cystic carcinoma of the tongue is causally related to service, to include any exposure to industrial solvents. A detailed rationale should be provided for any opinion expressed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).