Citation Nr: 1808987 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-38 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1970. He died in October 2008. The appellant is the Veteran's widow seeking service connection for cause of the Veteran's death. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran was clearly a credit to the Marine Corps and to his family, and his service to his country is greatly appreciated. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The case was then transferred to the RO in Louisville, Kentucky. The Board previously remanded the appeal in April 2012 and August 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Appellant is afforded every possible consideration. The Veteran's cause of death was determined to be due to esophageal cancer and lung cancer. The Appellant contends that the Veteran's cancer was due to his exposure to Agent Orange during his service in Vietnam or, alternatively, contaminants in the drinking water at Camp Lejeune during his active service. As an initial matter, the Board notes that VA has obtained opinions dated December 2010, October 2011, and February 2017 concerning a causal relationship between the Veteran's esophageal cancer and his exposure to contaminated drinking water while stationed at Camp Lejeune. Additionally, in December 2017, the Appellant submitted a private opinion from a physician in support of her claim. As such, the Board is not requesting further development regarding this theory of entitlement. However, regarding the Appellant's initial contention that the Veteran's esophageal cancer was due to his exposure to Agent Orange during his military service, additional development is required. In August 2012, VA obtained a medical nexus opinion addressing whether the Veteran's esophageal cancer was due to his exposure to herbicides during his military service. The VA examiner stated that it was less likely than not that the Veteran's esophageal cancer is causally related to his exposure to herbicides, including Agent Orange, since esophageal cancer is not on the list of diseases associated with Agent Orange exposure. No further rationale was provided, and no opinion as to whether the Veteran's esophageal cancer may be attributed to his military service on a direct basis was provided. The United States Court of Appeals for Veterans Claims (Court) has indicated that "[t]he availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange." See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). As such, an addendum opinion must be obtained. Finally, as the outcome of the Appellant's claim for burial benefits is inextricably intertwined with the outcome of the claim for service connection for the cause of the Veteran's death, adjudication of that issue should be deferred until the claim for service connection for the cause of the Veteran's death has been developed and adjudicated. Accordingly, the case is REMANDED for the following action: 1. The appellant should be afforded an opportunity to submit any additional clinical or non-clinical information she believes would assist her to substantiate her claim. 2. Obtain an opinion as to whether the Veteran's esophageal cancer is due to or the result of his military service, to include as due to his exposure to Agent Orange. The examination report must include a complete rationale for all opinions expressed. 3. Then readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Appellant and provide an opportunity to respond before the case is returned to the Board. 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 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals