Citation Nr: 1804366 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-32 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION The Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1954 to March 1973, with service in the Republic of South Vietnam. The Veteran died in August 2008. The Appellant is his surviving spouse. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This claim was previously before the Board in August 2013, when it was remanded for further development. In June 2016, the Board again remanded for further development. The Appellant testified before the undersigned in a March 2016 videoconference hearing. An earlier Board hearing was held before a Veterans Law Judge who is no longer at the Board. Transcripts of those hearings are of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) (formerly Virtual VA) electronic claims files. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND In its June 2016 remand, the Board noted that the January 2013 VA examination and the November 2014 addendum opined as to the etiology of the Veteran's polycythemia vera, which was his cause of death. However, while the January 2013 examiner opined that polycythemia vera was not a presumptive disease that was secondary to Agent Orange exposure, neither one of the examiners opined as to whether the herbicide could have caused the polycythemia vera directly. The Board directed that an addendum opinion be obtained. A March 2017 reviewer subsequently opined that polycythemia vera is less likely as not causally or etiologically related to the events of active service, to include the conceded Agent Orange herbicide exposure, explaining that polycythemia vera is not one of the diseases recognized by VA as a presumptive disease associated with exposure to Agent Orange and other herbicide agents. However, this was followed in April 2017 addendum request by the Roanoke RO, stating that the March 2017 opinion is insufficient for rating purposes, as its rationale is the same as the rationale previously rejected by the Board. The request added that the Board had already recognized that polycythemia vera is not a presumptive service-connected disease based on Agent Orange exposure and asked the examiner once more to provide an opinion as to whether or not polycythemia vera could have been causally or etiologically linked to exposure to a herbicide agent. An April 2017 Disability Benefits Questionnaire (DBQ) Medical Opinion form has been associated with the file under the March 2017 VA examiner's name. However, on the form no response whatsoever was provided. As such, further development is indicated. Accordingly, the case is REMANDED for the following action: 1. Arrange to have the Veteran's claims file reviewed by the prior or other a qualified examiner to determine whether the Veteran's cause of death of polycythemia vera was directly related to his conceded Agent Orange/herbicide agent exposure. The examiner must review the claims file and note that review in the examination report. The examiner must provide the rationale for all opinions expressed. If the examiner is unable to provide the required opinion, the examiner should explain why that is. The examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's polycythemia vera was causally or etiologically related to the Veteran's active service exposure to a herbicide agent, to include the conceded Agent/Orange herbicide exposure. The examiner is requested to provide a rationale which supports the opinion with specific references to clinical data and medical literature, as appropriate. A mere assertion that polycythemia vera is not one of the presumptive diseases of herbicide agent exposure recognized by VA is insufficient. 2. Readjudicate the claim. If the benefits sought on appeal remain denied, furnish the Appellant and her representative with a supplemental statement of the case (SSOC) and afford them the opportunity to respond. Then return the case to the Board for further appellate 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL D. LYON 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).