Citation Nr: 1808405 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-09 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1972, April 1981 to September 1984, and April 1986 to May 1994. He died in July 2012, and the appellant claims as his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction currently resides at the VA RO in Des Moines, Iowa. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a September 2016 hearing. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Legacy Content Manager paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant contends that the Veteran's cause of death, urothelial cell bladder carcinoma, is related to the Veteran's service, in particular from herbicide exposure due to the Veteran's service in Vietnam. See, e.g., the September 2016 Board hearing transcript, page 5. She alternatively contends that the Veteran's treatment for diabetes mellitus, type II, which was due to the Veteran's in-service herbicide exposure caused the Veteran's death. Id. The Veteran died in July 2012. His death certificate lists the cause of death as urothelial cell bladder carcinoma. During his lifetime, the Veteran was not service connected for any disability. In accordance with 38 U.S.C. § 5103A(a), VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary. According to the United States Court of Appeals for Veterans Claims (Court), it is this general duty to assist provision, rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), which is applicable to claims for service connection for the cause of the Veteran's death. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). With regard to the appellant's claim that the Veteran's type II diabetes mellitus contributed to his death, although the Veteran's service treatment records are absent complaints of or symptoms associated with diabetes, the record reflects that the Veteran served in the Republic of Vietnam. Exposure to herbicides is therefore presumed. The Board further notes that according to 38 C.F.R. § 3.309(e) (2017), certain diseases may be presumed to be related to exposure to herbicides; diabetes mellitus, type II is one of the listed diseases that may be presumed to be related to exposure to herbicides. The evidence currently associated with the Veteran's VA claims folder is absent an opinion as to a possible causal relationship as to whether the Veteran's cause of death was related to his diabetes mellitus, type II. In light of the foregoing, the Board finds that a medical opinion should be obtained as to this matter. Accordingly, the case is REMANDED for the following action: 1. Arrange for a physician or other qualified medical practitioner to review the Veteran's claims folder and render an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diabetes mellitus, type II, contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. The examiner is asked to provide the underlying reasons for any opinion expressed. 2. After undertaking any additional development which it deems to be necessary, readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).