Citation Nr: 21063255 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-32 807 DATE: October 13, 2021 REMANDED Entitlement to special monthly pension (SMP) based on aid and attendance and/or housebound benefits is remanded. Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1953 to September 1957 and from August 1958 to November 1973. He died in June 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In June 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to special monthly pension (SMP) based on aid and attendance and/or housebound benefits is remanded. The appellant seeks aid and attendance and/or housebound benefits, stating that she is blind and cannot leave her home unassisted. See Hearing Transcript (June 2021). The Board notes that the only aid and attendance examination of record was conducted in July 2012. See VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (August 2021). That examination noted multiple eye diagnoses and provided that she was legally blind with constricted visual field of 20 degrees horizontal and vertical. Id. The examination also provided that she had no limits on ability to leave her home. Id. However, the appellant contends that since that examination she is now unable to leave her home unassisted. The matter must be remanded to schedule her for a new examination to determine her need for regular aid and attendance or housebound status. 2. Entitlement to service connection for the Veteran's cause of death is remanded. The appellant contends that the Veteran was exposed to Agent Orange while serving on various ships in the Navy - U.S.S. Chandler, U.S.S. Theodore Roosevelt, U.S.S. Hornet, U.S.S. Shangri-La and U.S.S. Bunting. See Hearing Transcript (February 2021). She contends that he was a Blue Water Veteran, because he served off the coast of Vietnam. Id. As to the cause of the Veteran's death specifically, the appellant contends that even though anoxic encephalopathy was the final cause that led to the Veteran's death, he had a lot of other long-term medical issues and medical concerns that were caused by his Agent Orange exposure, and which at least contributed to his death. Id. She asserts that these disabilities, including diabetes mellitus and coronary artery disease, that contributed to his death could be associated with Agent Orange. Id. She further contends that he experienced something like a "stroke"; underwent four bypass surgeries; had choking spells resulting in his inability to breathe; had problems with his breathing and arteries; had larynx cancer; and that his diabetes mellitus resulted in toe amputation, all of which she claims resulted from in-service exposure. Id. Prior to his death, the Veteran alleged that his ischemic heart disease, diabetes, neuropathy, kidney disease, lungs disease, cancer of the larynx and liver disease were due to exposure to Agent Orange and/or asbestos in the Navy. See VA 21-4138 Statement In Support of Claim (June 2011). He detailed that he was in Vietnam picking up mail, and taking troops in and out of Vietnam (in DaNang); and that he also served in the inland waterways around Elephant Valley. Id. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Mogan v. Nicholson, 21 Vet. App. 413 (2006) (quoting 38 C.F.R. § 3.312 (c)(3)). Turning to the facts, the Veteran's death certificate shows that he passed away in June 2012 as a result of anoxic encephalopathy. See Death Certificate (June 2012). At the time of his death, the Veteran was service-connected for hearing loss, tinnitus and deviated nasal septum. Further, the Board notes that the Veteran had diagnoses of squamous cell carcinoma of the larynx, for which he had laryngectomy and tracheostomy; diabetes mellitus; diabetic neuropathy; diabetic dyslipidemia; hypertension; chronic obstructive pulmonary disease (COPD); coronary artery disease (CAD); congestive heart failure (CHF) and deep venous thrombosis (DVT). See VA Examination (July 1986 and September 1986); Medical Treatment Record - Non-Government Facility (July 2011). The Board observes that diabetes, CAD and cancer of the larynx and trachea are listed as diseases associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e). With regard to these diagnoses, because they are listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the appellant can rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate her claim. Thus, if exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e) become applicable. Even if presumptive provisions are not for application, service connection may still be established on direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). See also, Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). In this case, the Veteran's service personnel records (SPRs) show that he served aboard the USS Thetis Bay, USS Chandler, USS Shangri-La (CVA-38), USS Hornet, and USS Bunting (MHC-45) during his service in the Navy from September 1954 to November 1973. See STR-Medical (June 1986). The Veteran's military occupational specialties (MOS) included General and Radio Operator. Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867) (September 2014). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38C.F.R. §3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38U.S.C. §101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38C.F.R. §3.307(a)(6)(iii). The phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam. 38 U.S.C. § 116A(d). Given the above, the Board finds that the Veteran's claim should be referred to the Joint Services Records Research Center (JSRRC) to attempt to corroborate the Veteran's claimed exposure. On remand, the AOJ should conduct all necessary development to verify the Veteran's alleged herbicide exposure, to include whether the multiple vessels, on which the Veteran served, operated in the territorial seas of the Republic of Vietnam during the Veteran's service. Lastly, the Board notes that the appellant has identified outstanding private treatment records at the June 2021 hearing, including those from Sparks Hospital, Fort Smith, St. Francis Hospital, Dr. Miranda, Dr. Daniels, Dr. Warner, Dr. Urban and Peachtree. See Hearing Transcript (June 2021). However, these records have not been associated with the appellant's file. When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the appellant in attempting to obtain them. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for non-VA medical records relevant to the diseases she believes caused or contributed to the Veteran's death to include records from Sparks Hospital, Fort Smith, St. Francis Hospital, Dr. Miranda, Dr. Daniels, Dr. Warner, Dr. Urban and Peachtree. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. All attempts to obtain these records must be documented in the claims file; and the appellant must be notified if requested records are not obtained. 2. Schedule the appellant for an aid and attendance/ housebound examination. Each of the appellant's disabilities should be evaluated, and the examiner is asked to describe the nature of the appellant's disabilities and the effect of her disabilities on her ability to perform daily functions, specifically addressing the following: (a.) Is the appellant blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes or concentric contraction of the visual field to five degrees or less? (b.) Is the appellant unable to dress or undress herself and keep herself ordinarily clean and presentable? (c.) Does she require frequent adjustment of any special prosthetic or orthopedic appliances that cannot be done without aid? (d.) Is she unable to feed herself through loss of coordination of upper extremities or through extreme weakness, or unable to attend to the wants of nature? (e.) Does she have incapacity, physical or mental, that requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment? (f.) Does she have any disability that requires that she remain in bed? (g.) Is she substantially confined to her dwelling and the immediate premises, and if so, is it reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime? When the examiner makes his or her determination with respect to the above questions, the examiner should specify which disability(ies) or a combination thereof that would cause the appellant to be housebound or to depend on another for regular aid and attendance. A complete rationale for each opinion offered must be included in the report. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents AND to include asbestos, through official sources to include the JSRRC, National Archives and Records Administration (NARA), or other appropriate repository, and request the deck logs and/or command histories as appropriate for each ship the Veteran is determined to have been present aboard during Vietnam War service, to verify whether the Veteran's service included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam. 4. IF HERBICIDE EXPOSURE IS CONCEDED BY VA, consider whether any of the conditions presumptively associated with such exposure caused or contributed materially to cause the Veteran's death. If necessary, obtain a VA medical opinion on this question. 5. If service connection for the cause of the Veteran's death cannot be granted based on any herbicide exposure, then IF ASBESTOS EXPOSURE IS CONCEDED BY VA, consider whether any of the Veteran's diagnosed conditions were related to that exposure, and, if so, whether those conditions caused or contributed materially to cause the Veteran's death. If necessary, obtain a VA medical opinion on this question. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.