Citation Nr: 19149239 Decision Date: 06/24/19 Archive Date: 06/24/19 DOCKET NO. 17-47 927 DATE: June 24, 2019 REMANDED The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. The claim of entitlement to a death pension is remanded. The claim of entitlement to burial benefits greater than $300.00 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1962 to July 1992 and he was awarded the Bronze Star Medal. He died in November 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2016 decisions in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied service connection for the cause of the Veteran’s death, a death pension and granted $300.00 for nonservice-connected burial benefits. The appellant filed a notice of disagreement (NOD) in December 2016 with the denials and the denial of burial benefits greater than $300.00. The RO issued a statement of the case (SOC) in January 2017 and the appellant perfected her appeal (via a statement expressing her desire to appeal all claims adjudicate in the January 2017 SOC) in February 2017. As regards representation, the appellant appointed Edward L. Reese as representative in a November 2016 VA Form 21-22a, Appointment of Individual as Claimant’s Representative, for one-time representation. The November 2016 appointment was filed with the agency of original jurisdiction (AOJ) and in compliance with the mandates of 38 C.F.R. § 14.630. As such, representation in conjunction with these claims only is reflected on the title page of this decision. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board’s review of the claims file reveals that additional AOJ action in this appeal is warranted. The appellant contends that the Veteran’s death is related to his exposure to herbicides during service in the Republic of Vietnam. Military personnel records confirm the Veteran’s service in the Republic of Vietnam and the RO has conceded exposure to herbicides. See 38 C.F.R. § 3.307. The Veteran’s death certificate lists metastatic pancreatic cancer as the Veteran’s sole cause of death. At the time of his death, service connection had been established for hiatal hernia (rated as 30 percent disabling); spondylosis and instability with severe hypertrophic degenerative facet joints at L4-S1 of the lumbosacral spine (rated as 20 percent disabling); hypertension (rated as 10 percent disabling); right orchiectomy (rated as 10 percent disabling); residuals of injuries to the right ankle (rated as 10 percent disabling); voiding dysfunction, status post prostate cancer (rated as 10 percent disabling); and left ear hearing loss and hemorrhoids (each rated as 0 percent disabling, or noncompensable). The appellant asserts that the Veteran’s fatal metastatic pancreatic cancer is related to his exposure to herbicides in the Republic of Vietnam. In support of her assertion, the appellant’s representative provided a statement dated April 2019, which indicated a medical link, generally, between exposure to herbicides and the development of metastatic pancreatic cancer. Metastatic pancreatic cancer is not included amongst those diseases listed in 38 C.F.R. § 3.309(a) for which presumptive service connection is available based on presume herbicides exposure. See 38 C.F.R. §§ 3.307, 3.309. Nonetheless, a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Under these circumstances, the Board finds that further action to obtain a VA medical opinion from an appropriate physician as to whether metastatic pancreatic cancer is related to the Veteran’s conceded exposure to herbicides—based on full consideration of all pertinent evidence (to include lay assertions), and supported by complete, clearly-stated rationale—is needed to resolve the claim for service connection for cause of the Veteran’s death. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As regards the claims for a death pension and increased rate of burial benefits, these claims are inextricably intertwined with the claim for service connection for the cause of the Veteran’s death. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that any Board action on the claim for increased rate of burial benefits and a death pension, at this juncture, would be premature. Hence, those matters are being remanded, as well. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal, explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. These matters are hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that the appellant provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the appellant responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from an appropriate VA physician a medical opinion addressing the cause of the Veteran’s death. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the opinion should include discussion of the Veteran's documented history and all lay assertions. Following a review of all the relevant evidence of record, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s fatal metastatic pancreatic cancer was medically related to service, to include presumed herbicide exposure therein. In offering this opinion, the examiner must consider and discuss all pertinent medical evidence and lay assertions. The physician is advised that the Veteran was competent to report his symptoms and history, and that the appellant is competent to report her observation of the Veteran; hence, all such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.