Citation Nr: 1806474 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-08 769A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and J.F. ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1950 to August 1954, and from November 1954 to November 1970. The Veteran's decorations and awards included the Korean Service Medal and the Vietnam Service Medal. The Veteran died in August 2011 and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. Jurisdiction of the claims file now resides with the San Diego, RO. In October 2017, the Appellant and J.F., the Veteran's daughter, testified at a Board videoconference hearing. A transcript of the hearing is of record. The issue of entitlement to survivor's benefits has been raised by the record in May 2012 correspondence, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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 AOJ. VA will notify the Appellant if further action is required. REMAND Although the Board regrets the additional delay, further development is required prior to the adjudication of the Appellant's claim. Firstly, at the October 2017 hearing, the Appellant testified that the Veteran received cancer treatment for lymphoma and pseudolymphoma at the Naval Medical Center in San Diego, California from 1981 to 1983. See Hearing Tr. at 8. The Appellant and J.F. further testified that the Veteran's treatment was managed by a Dr. Luiken and that Dr. Luiken later published research as a result of the experiences of the Veteran and other individuals' medical treatment. See id. at 6-8. Apparent copies of treatment records from the Naval Medical Hospital in San Diego beginning in 1981 are currently associated with the claims file; but, most of them are illegible. Relatedly, due to this illegibility, the Board at this time cannot confirm that VA obtained relevant treatment records from Dr. Luiken specifically. Accordingly, the Board will remand the matter so that (1) legible copies of treatment records from the San Diego Naval Medical Hospital may be obtained, and (2) VA may obtain any additional records of treatment specifically affiliated with Dr. Luiken. In a similar vein, an August 2011 VA treatment record from immediately before the Veteran's death indicates that the Veteran had been treated 3 weeks prior at a non-VA hospital for pneumonia. However, no such records are currently associated with the claims file. As such records may be relevant to the pending claim, they too should be obtained on remand. Lastly, in February 2015, a VA clinician issued a medical opinion providing that the Veteran's death was less likely than not caused by service. In support of this opinion, the clinician indicated that she had reviewed the Veteran's in-service and post-service medical records. However, the claims file currently indicates that the Veteran's service treatment records (STRs) were not uploaded until August 2016. A May 2012 Virtual VA entry labeled STRs is in fact a duplicate copy of the Veteran's illegible, post-service Navy Medical Center records. Due to these inadequacies, the Board cannot find the February 2015 VA medical opinion adequate for adjudicative purposes as its ultimate conclusion may be based on an incomplete or inaccurate disability picture. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, a new VA medical opinion must also be obtained on remand. Accordingly, the case is REMANDED for the following action: (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. Attempt to obtain legible records of treatment for the Veteran from the Naval Medical Center in San Diego, California beginning in 1981. Additionally, obtain any record of treatment regarding the Veteran produced by Dr. Luiken at that facility beginning in 1981. If authorization forms are necessary for the obtainment of said records, appropriate releases should be obtained. Any negative attempts to retrieve the records should be in writing and should be associated with the claims file. 2. Contact the Appellant and ask her to identify and authorize the AOJ to obtain any record of treatment from the non-VA facility recognized in August 2011 VA treatment records that treated the Veteran for pneumonia approximately 3 weeks prior to his death. If authorization forms are necessary for the obtainment of said records, the AOJ should contact the Appellant to ask her to complete any appropriate releases. Any negative attempts to retrieve these records should be in writing and should be associated with the claims file. 3. After the above have been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of the Veteran's lymphoma/pseudolymphoma. After thoroughly reviewing the claims claim, the clinician should then state whether it is at least as likely as not (50 probability or more) that the Veteran's lymphoma/pseudolymphoma was related to service, to include exposure to herbicides from service in the Republic of Vietnam. In offering any opinion, the clinician should consider medial and lay evidence dated both prior to and since the filing of the claim. The clinician should specifically comment upon the contention raised at the October 2017 Board hearing that the Veteran was inaccurately diagnosed during his period of treatment beginning in 1981. For the opinion requested, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Appellant with a Supplemental Statement of the Case and afford her a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S.C. KREMBS 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).