Citation Nr: 18142995 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-07 003 DATE: October 18, 2018 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to August 1969. He died in August 2010. The appellant is the Veteran’s surviving spouse. The appellant contends that the Veteran’s death was related to his active-duty service, and that she is therefore entitled to dependency and indemnity compensation. To warrant entitlement to service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases, including type II diabetes mellitus, but not type I diabetes mellitus or gastric cancer. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. Based on his awards and decorations, branch of service, and military occupational specialty the Veteran’s DD-214 strongly suggests that he served in the Republic of Vietnam. The Veteran’s August 2010 death certificate relates that the immediate cause of his death was gastric cancer. There were no recorded contributing causes. In a May 2018 letter, Dr. T.G. noted that the Veteran was diagnosed with diabetes mellitus “in the early 2000s” and opined that diabetes mellitus was “a significant contributory cause of his gastric cancer (and the subsequent metastatic disease of the liver and other organs and his death).” Dr. T.G. indicated that his opinion was based on “military health care records, VA and other civilian treatment records, and VA review findings.” However, these records do not appear to have been associated with the electronic file. Indeed, the record contains no medical evidence relating to the diagnosis or treatment of diabetes mellitus apart from the opinion of Dr. T.G. In light of the favorable opinion from Dr. T.G., additional development is required. Specifically, the appellant has reported that the Veteran obtained private treatment from Drs. Richard Mitlehner and Worden Woodard, and through Carolina Healthcare System. Records of such treatment must be requested. Additionally, there is no indication that VA treatment records have been requested. The report of Dr. T.G. and correspondence from the appellant’s representative suggest that such records exist. Thus, all available VA treatment records must also be requested. Correspondence contained in the electronic file indicates that the Veteran’s service treatment records were determined to be unavailable, and that the appellant was notified of this fact in a March 10, 2015 letter. The March 10, 2015 letter is not associated with the record, and it must be obtained on remand. Finally, on remand any development necessary to confirm the Veteran’s service in the Republic of Vietnam should be undertaken. Accordingly, the matter is REMANDED for the following action: 1. Obtain all available VA treatment records pertinent to the claim. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Ask the appellant to complete VA Forms 21-4142 in order to authorize VA to secure any private records relevant to the treatment of the Veteran’s diabetes mellitus. This specifically includes Drs. Mitlehner and Woodard, and the Carolina Healthcare System. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Obtain the March 10, 2015 letter notifying the appellant that the Veteran’s service treatment records were unavailable and associate it with the electronic file. If the RO cannot locate this letter, it must again attempt to locate the Veteran’s service treatment records. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 4. Contact the National Personnel Records Center and request a complete copy of the Veteran’s service personnel records. If they cannot be secured conduct appropriate development to review the unit records of B Battery, 4th Battalion, 73rd Artillery in order to verify that the Veteran served in the Republic of Vietnam. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 5. Thereafter, if the Veteran is shown to have served in the Republic of Vietnam, and if he was diagnosed with type II diabetes mellitus at any time prior to his death provide the Veteran’s VBMS and Virtual VA/Legacy files to an oncologist for review. Following that review the oncologist is to address whether it is at least as likely as not that gastric cancer was caused or aggravated by type II diabetes mellitus. The oncologist must address the May 1, 2018 opinion offered by T.K. Guthrie, M.D. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel