Citation Nr: 20044958 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 13-18 605A DATE: July 7, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides, on an accrued benefits basis, is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active duty military service from March 1965 to January 1974, to include during the Vietnam War. The Veteran died in January 2010. The Appellant is the Veteran’s surviving spouse. This matter was previously before the Board in July 2018, when the claim of service connection for the cause of the Veteran’s death was denied. The Appellant appealed that decision to the Court of Appeals for Veterans Claims (Court) which in November 2019 issued a Memorandum Decision which set aside the Board’s decision and remanded the matter for further development. Entitlement to service connection for diabetes mellitus, type II, on an accrued benefits basis Among the issues addressed in the Court’s decision was the matter of whether the document filed in May 2009 constituted a Notice of Disagreement with the rating decision issued in April 2009. The Court specifically directed that the Board should address this contention as part of the remand. The April 2009 rating decision declined to reopen a previously denied claim of service connection for diabetes mellitus, type II, and denied service connection for hypertension with left ventricular hypertrophy. The May 2009 document is entitled “Notice of Disagreement” and specifically addresses the appeal to reopen the previously denied claim of service connection for diabetes as a result of exposure to herbicides. (See NOD, 05/22/2009.) After reviewing the record, the Board finds that the May 2009 document constituted a Notice of Disagreement with the decision to deny reopening of the claim of service connection for diabetes mellitus, type II. The Board notes that the document does not discuss the claim of service connection for hypertension and, therefore, concludes that this matter was not preserved on appeal. At the time of the May 2009 Notice of Disagreement, the Veteran had been found to be incompetent for VA purposes and his son had been appointed the custodian and fiduciary for VA purposes. The Notice of Disagreement was completed and filed by the appointed custodian/fiduciary and therefore preserved the claim on appeal and it was still pending at the time of the Veteran’s death. Following the Veteran’s death in January 2010, the Appellant filed a claim for accrued benefits in June 2010. Thus, the legal criteria for a claim for accrued benefits have been satisfied. 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). This claim must be adjudicated in the first instance on remand. Entitlement to service connection for the cause of the Veteran’s death The Appellant seeks service connection for the cause of the Veteran’s death, which is listed as hypertensive cardiovascular disease. The focus of the appeal thus far has been on the issue of entitlement to the presumption of exposure to herbicidal agents during the Veteran’s time in service. To that end, the Appellant and her son have testified to the Veteran’s reports of service in Vietnam on an ad hoc basis as part of his duties as a water treatment specialist, as well as to time spent on the perimeter of Udorn Royal Thai Air Force Base. That aspect of the claim is still being considered and the Appellant and her attorney may submit any additional evidence and argument they deem relevant. A review of the record, however, indicates that the question of service connection on a direct basis requires additional attention and development. Specifically, the Veteran’s service treatment records show that he complained of chest pain, shortness of breath, pounding heart, and frequent indigestion. (See STR, 07/19/2012.) He was provided an EKG in 1974 which was normal. Although the separation examination dismissed these findings as not incapacitating and not resulting in any sequelae or residual problems, the Appellant and her son both testified at hearing that the Veteran’s symptoms remained the same after service separation. In 1977, the Veteran was diagnosed with angina after reporting a history of chest pain, shortness of breath, dyspepsia after eating, and dizziness on exertion. (See Medical Treatment Record, 12/08/1977 (2 separate documents).) Angina is a major risk factor for coronary disease, which was the cause of the Veteran’s death. Therefore, it is important to obtain an expert medical opinion as to whether the symptoms reported by the Veteran in service were related to his subsequent diagnosis of angina soon thereafter, such that angina or related disability may have had its onset in service. The matters are REMANDED for the following action: 1. Obtain an expert medical opinion from a cardiologist on the claim of service connection for the cause of the Veteran’s death. Specifically, the expert should review the medical records from service, the medical records from the first 10 years subsequent to service, the Veteran’s statements regarding his symptoms, and the sworn testimony of the Appellant and her son regarding the Veteran’s symptoms of chest pain, shortness of breath, and indigestion. Then the expert should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran’s angina had its onset in service. In providing this opinion, the expert should explicitly address the significance, if any, of the Veteran’s symptoms in service, both individually and as a constellation; the significance, if any, of the EKG and chest X-ray findings at service separation; and the relevance of the lapse of time between symptoms in service and diagnosis of angina. The examiner should specifically comment whether the symptoms shown in service are consistent with angina being shown a few years later. The expert should provide a statement of the reasons or rationale for all opinions offered. The expert should provide citations to any relevant medical evidence, research, or literature which informs the opinion. In the event that the expert finds that an opinion cannot be offered, the expert should include a statement of the reasons for the inability to offer an opinion, to include whether further information would be necessary and whether the question is beyond the current limits of medical knowledge. 2. The claim for accrued benefits based on reopening of the claim for diabetes mellitus, type II, as a result of exposure to herbicidal agents should be appropriately adjudicated. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.