Citation Nr: 18148077 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-40 712 DATE: November 6, 2018 REMANDED Entitlement to the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1954 to December 1957. He died in June 2012. The appellant is his surviving spouse. This matter is on appeal from a February 2013 rating decision. In July 2018, the appellant and her daughter testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Service connection for the cause of the Veteran's death The Veteran passed away in June 2012. His death certificate identifies the immediate causes of his death as cardiopulmonary arrest due to acute renal failure due to hemolytic uremic syndrome. At the time of his death, the Veteran was service connected for fibrocystic lung disease, hemorrhoids, tinnitus, and bilateral hearing loss. The Appellant claims that service connection for the cause of the Veteran’s death is warranted. She claims that he had myelodysplasia due to herbicide agent exposure which contributed to his death. She testified that he worked in supply in Vietnam and handled clothes that were saturated with Agent Orange. A review of the Veteran’s DD Form 214 indicates service in the United States Air Force with a military occupational specialty of engine mechanic which required him to receive aircraft following routine maintenance. His duties included running the engines and checking for maximum power. See, November 2011 rating decision and DD Form 214. At the hearing, the Appellant’s representative stated that VA conceded his exposure to an herbicide agent and stated that he was granted service connection for coronary artery disease (CAD) due to herbicide agent exposure. However, CAD is not one of the Veteran’s service-connected disabilities and there is no indication that VA conceded herbicide agent exposure. Moreover, the Veteran’s DD Form 214 does not indicate service during the Vietnam era which is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. 38 U.S.C. § 101 (29) (A); 38 C.F.R. § 3.2 (f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C. § 101 (29) (B); 38 C.F.R. § 3.2 (f). Accordingly, the Board finds that further development is needed regarding the Veteran’s claimed herbicide agent exposure during service as an engine mechanic. The RO should attempt to verify the alleged exposure to an herbicide agent following the procedures provided in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual, which development should include findings as to the Veteran’s possible exposure during service. At the hearing, the undersigned reviewed a February 2013 private opinion which states that the Veteran’s myelodysplasia can be caused by exposure to toxic agents and that Agent Orange could be a contributing to the development of myelodysplasia. However, it is well-established that a speculative opinion cannot be used to establish a claim for benefits. See Stegman v. Derwinski, 3 Vet. App. 228 (1992) (held that did little more than suggest a possibility that his illnesses might have been caused by service radiation exposure was insufficient to establish service connection). The undersigned explained to the Appellant that it would be beneficial to obtain a clarifying opinion from the private physician supported by a well-reasoned rationale. The record was held open 60 days for the Appellant to obtain an additional opinion. However, none was submitted. Since it is unclear whether there is any relationship between the Veteran’s myelodysplasia and his military service, to include any verified herbicide agent exposure, on remand a medical opinion should be obtained. In addition, records of any hospital treatment in Hawaii during the Veteran’s service, and post-service treatment from Dr. J.N.P. and Methodist Hospital should be obtained. The matter is REMANDED for the following actions: 1. Obtain any outstanding copies of the Veteran’s service treatment records, to specifically include any records of hospitalization in Hawaii, and service personnel records from all periods of the Veteran’s military service. All efforts to obtain these records must be fully documented. If these records do not exist or cannot be obtained, the Veteran must be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Attempt to verify the Appellant’s claim that the Veteran was exposed to herbicide agents during service following the procedures set forth in the VBA Adjudication Procedure Manual. All requests and responses received should be associated with the claims file. 3. Contact the appellant and request that she either submit, or provide VA sufficient information and authorization to obtain, any private treatment records from Dr. J.N.P. in Fredericksburg, Texas, and Methodist Hospital in San Antonio, Texas. Explain to the appellant that her prior authorization for the release of the Veteran’s private medical records has expired, and that she will need to reauthorize the release of any additional records for VA to obtain them. Also obtain and associate with the record a copy of the February 2013 private medical opinion discussed at the July 2018 hearing. In order to expedite this case, the appellant’s representative (and/or the appellant), is asked to obtain these records herself/himself and inform the RO/AMC that all appropriate records have been submitted in order to ensure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case quickly. 4. Then, the claims file should be sent to an appropriate VA examiner to provide an opinion on the cause of the Veteran's death. The examiner is requested to review the claims folder, to include this remand, and provide the following: (a.) The physician should confirm whether the Veteran was diagnosed with myelodysplasia prior to his death. (b.) If the Veteran was diagnosed with myelodysplasia prior to his death, the physician should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran’s myelodysplasia was etiologically related to his service, to include any confirmed herbicide agent exposure therein. The examiner should specifically comment on any medical opinion that relates the Veteran’s claimed myelodysplasia, to include the February 2013 private medical opinion discussed at the July 2018 hearing. The report should include the complete rationale for all opinion(s) expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. (Continued on the next page)   If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel