Citation Nr: 1813481 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 14-21 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) for service-connection for the cause of death. 2. Entitlement to Survivors Pension. REPRESENTATION Appellant represented by: Jeffrey Bunten, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty in the US Army from February 1967 to September 1969. His death certificate indicates that he died on October [REDACTED], 2011. The Appellant claims as his surviving spouse. The Appellant presented sworn testimony at a hearing before the undersigned in November 2017. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration. The Appellant's DIC claim must be remanded to obtain a VA medical opinion to determine whether the Veteran's esophageal cancer was related to his service, including exposure to an herbicide agent such as Agent Orange. The Appellant raises a claim for service-connection for the Veteran's cause of death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310 (2012); see also 38 C.F.R. § 3.312 (2017). A service-connected disability is considered the "principal" cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A "contributory" cause of death is inherently one not related to the principal cause. 38 C.F.R § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. The Veteran was not service-connected for esophageal cancer. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran's death certificate indicates that smoking contributed to the development of esophageal cancer. The Appellant has submitted a previous Board decision which references a report by Admiral E.R. Zumwalt to the Secretary of the VA where the Admiral opines that based on his research "[he] is most comfortable in concluding that it is at least as likely as not that liver cancer, nasal/pharyngeal/esophageal cancers, leukemia, malignant melanoma, kidney cancer, testicular cancer, pancreatic cancer, stomach cancer, prostate cancer, colon cancer, brain cancer, psychosocial effects, and gastrointestinal disease are service-- connected." The Board is without adequate medical expertise consider this, consequently a remand for a VA medical opinion is necessary. The pension claim must also be remanded for additional development. Death pension is available to the "surviving spouse" of a Veteran because of the Veteran's death due to nonservice-connected disabilities, as long as the Veteran served for the required period of time during wartime and subject to certain income limitations. See 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.23, 3.3. The surviving spouse of a Veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of the spouse's countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C.. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The maximum annual pension rate is adjusted from year to year. If the appellant's income is less that the MAPR, VA will pay benefits to bring her income up to that level. A higher MAPR (and increased benefits) is available to a surviving spouse by reason of the need for aid and attendance (A&A). 38 U.S.C. §§ 1502(b), 1541(d)&(e); 38 C.F.R. § 3.351(a)(5),(b),(c). Here, there appears to be some confusion regarding the Appellant's income, net worth, and expenses. The RO requested additional documentation from Appellant but did not receive a reply. However, there is also a question as to whether such information was fully necessary since Appellant may have inadvertently written her total income in the line reserved for investment income as a result of using the two preceding lines for addition to calculate her total income. Since the record is unclear with respect to the Appellants monthly income and medical expenses, a remand is necessary for the Board to be able to adequately consider the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. Ask the Appellant to identify any private medical care providers who treated the Veteran for cancer. After securing the necessary release, associate any such identified records with the claims file. 3. Notify the Appellant that she may submit lay statements from herself, and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any events that the Appellant contends occurred in service or after service that connect the Veteran's cancer to the Veteran's military service. The Appellant should be provided an appropriate amount of time to submit this lay evidence. 4. After completing the above development, forward the complete claims file to appropriate VA examiners for a comprehensive review of the record and any necessary opinions. After reviewing the claims file the providers should answer the following to the best of their ability: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's esophageal cancer had its onset in service or is otherwise related to an event, injury or disease incurred in service, including exposure to Agent Orange; ( please consider the Zumwalt report to Secretary of VA referenced by the Appellant where it is concluded that "it is at least as likely as not that ... esophageal effects, and gastrointestinal disease are service-connected" because of Agent Orange exposure. Report found at http://www.gulfwarvets.com/ao.html (b) If you find that esophageal cancer had its onset in service or is otherwise related to service, is at least as likely as not (50 percent probability or greater) that cancer (singly or jointly) caused the Veteran's death; contributed substantially or materially to cause death; or aided or lent assistance to the production of death A complete rationale should be provided for any opinion stated, including citation to specific evidence of record and/or medical authority as appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner should 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). 5. Make reasonable efforts to develop information regarding the Appellant's income and expenses for the period on appeal as necessary for the pension claim. 6. After undertaking the development above, including any follow-up notification and/or development that is warranted, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Appellant and her representative should be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Cynthia M. Bruce 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).