Citation Nr: 20021022 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 19-06 326 DATE: March 24, 2020 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1968 to September 1970, including more than thirty days of service at Camp Lejeune prior to 1988. He died in September 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2019, the Board remanded this matter for additional development. Specifically, the Board directed that the AOJ secure any outstanding VA treatment records, as well as private records identified by the appellant, and then obtain a medical opinion. The AOJ determined that no VA treatment records were outstanding. See August 2019 Deferred Rating Decision. Prior to the Veteran’s death, he attempted to secure representation by the Disabled American Veterans (DAV), an accredited Veteran Service Organization (VSO). See August 2016 VA Form 21-22; November 2016 Email Correspondence. The appellant is advised that she may request representation by a VSO to assist her with her appeal. While the Board regrets the delay, remand is necessary for additional development and to comply with the August 2019 remand directives. In this regard, the AOJ’s requests for medical records sent to Dr. M.H. were returned as undeliverable. See December 2019 Returned Mail; January 2020 Returned Mail. However, these requests were not sent to Dr. M.H.’s correct address, which is listed on the Veteran’s death certificate. See Death Certificate (Certifier). Additionally, Brigham and Women’s Health explained that it could not provide medical records of a deceased patient without an authorization signed by the estate representative, as well as a copy of the appointment decree. See December 2019 Third Party Correspondence. Following the receipt of this letter, the record does not show that the AOJ made any effort to comply with this request. Rather, it issued a second request for medical records but did not provide a copy of the appointment decree. See December 2019 Development Letter (Brigham and Women’s Health). Critically, while the AOJ informed the appellant that it had requested records from Brigham and Women’s Health, it did not request that the appellant provide a copy of the appointment decree or inform her that these records could not be secured without this decree. Moreover, additional medical records concerning the Veteran’s esophageal adenocarcinoma were associated with the claims file after the October 2019 examiner provided a medical opinion. See January 2020 Medical Treatment Records. As the AOJ recognized, an addendum is required that considers these records. See November 2019 Deferred Rating Decision. On remand, the AOJ should make sufficient efforts to obtain all outstanding relevant records. The AOJ should notify the appellant that a copy of the decree appointing her as estate representative is necessary for VA to obtain records from Brigham and Women’s Health, and that she has the option to provide these records to VA directly. An addendum opinion should then be secured from an examiner who has access to these records. The matters are REMANDED for the following action: 1. Inform the appellant that Brigham and Women’s Hospital has requested a copy of the decree appointing her as representative of the Veteran’s estate before it will provide records to the VA, and request that she provide a copy of the same, or alternately, secure these records herself and provide them directly to the VA. 2. Request the Veteran’s treatment records from Dr. M.H. at the address identified on the death certificate. See Death Certificate (Certifier). 3. With any necessary assistance from the appellant, secure all outstanding relevant private treatment records, to include any records from Brigham and Women’s Hospital (should she furnish an appointment decree in response to #1 above) and Massachusetts General Hospital. See November 2019 Supplemental Claim. 4. Then, after records have been secured, refer the claims file to an examiner for preparation of an addendum opinion. In the event that no additional records are secured, an addendum opinion must still be obtained, as additional relevant medical records were received in January 2020. Following a review of the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory failure was related to service, to include conceded exposure to contaminated water at Camp Lejeune? Please consider the evidence showing that the Veteran was treated for a viral infection in service. See STRs. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bowel obstruction was related to service, to include conceded exposure to contaminated water at Camp Lejeune? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s gastroesophageal cancer was related to service, to include conceded exposure to contaminated water at Camp Lejeune? Please consider the evidence showing that the Veteran had swelling in the right maxillary region and issues with his teeth during service. See STRs. (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s prostate cancer was related to service, to include conceded exposure to contaminated water at Camp Lejeune? Please consider the evidence showing that the Veteran had several episodes of hematuria during service with a noncontributory family and personal history. See STRs. Please answer each sub-part separately. In addressing these questions, the examiner should discuss the Veteran’s private medical records, as well as any other evidence that he or she deems relevant. The examiner is advised that an opinion premised solely upon the fact that a condition is not presumptively associated with exposure to Camp Lejeune contaminated water is legally inadequate. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.