Citation Nr: 21069850 Decision Date: 11/20/21 Archive Date: 11/20/21 DOCKET NO. 18-50 861 DATE: November 20, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1954 to January 1957, and from May 1958 to July 1954, including service in the Republic of Vietnam. He died in June 2015. The appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. Entitlement to service connection for the Veteran's cause of death is remanded. The appellant contends that the Veteran's death resulted, at least in part, due to his diagnosed diabetes mellitus, which was due to herbicide exposure in Vietnam. See Hearing Transcript (August 2020). She also contended that Dr. H. of Dixon told the Veteran that he had metal particles in his blood test and that these were due to Agent Orange. Id. The Board finds that remand is necessary to obtain relevant outstanding private treatment records. 38 C.F.R. § 3.159(c). Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). 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). At the outset, the Board notes that a September 2018 Administrative Decision determined that the Veteran's service treatment records (STRs) and service personnel records (SPRs) for the period from January 19, 1954, to January 9, 1957 were unavailable for review. See Administrative Decision (September 2018). In September 2018, the RO advised the appellant that the Veteran's STRs and SPRs for the period from January 1954 to January 1957 are fire-related and unavailable for review in this case. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Turning to the facts, the Veteran died in June 2015 from severe dementia/severe debility with the other significant conditions listed to include recurrent aspiration and pneumonia. See Death Certificate (August 2015). At the time of his death, he was not service-connected for any disability. However, the available records show that he served in Vietnam and exposure to herbicide agents had been conceded, and he had been diagnosed with diabetes mellitus. See SOC (September 2018); Medical Treatment Record - Government Facility (January 2017). In August 2017, an amended death certificate was associated with the claims file. It continued to list the immediate cause of death as severe dementia/severe debility and added diabetes as an "other significant condition[] contributing to death." See Death Certificate (August 2017). There was no explanation for this change. In September 2017, the appellant was notified that medical evidence for the amended death certificate was necessary. See MAP-D Development Letter (September 2017). The appellant later provided an affidavit from Dr. S. H., dated July 2017, that requests to correct the Veteran's death certificate to add diabetes as a "significant" contributing cause of death to the original death certificate. See Medical Treatment Record - Non-Government Facility (October 2017). However, there was no explanation for this change. Without any information about why the correction was proposed, the Board is unable to reconcile the discrepancies between the available Death Certificate and the affidavit at this time. On remand, the appellant should be requested to submit additional medical rationale for why diabetes mellitus was a significant contributing cause of death. The Veteran's death certificate reflects that he passed away at a private facility, Horizon Medical Center. See Death Certificate (August 2015). Additionally, the appellant testified that the Veteran received medical treatment at St. Thomas Hospital and Goodlark Hospital, including for his diabetes. See Hearing Transcript (August 2020). A remand is required to allow VA to obtain authorization and request these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matter is REMANDED for the following action: 1. Send a letter to the appellant requesting her to identify any relevant outstanding private treatment records, to include from Horizon Medical Center, Goodlark Hospital and St. Thomas Hospital, and any other relevant evidence pertaining to her claim. She should be invited to submit this evidence herself or to request VA to obtain it on her behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the appellant properly fills out and returns any authorized release forms for private records identified by her, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the appellant are not successful, she must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Request that the appellant submit additional medical explanation from Dr. S.H. regarding why diabetes was a significant contributing cause to the Veteran's death. JENNIFER HWA 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.