Citation Nr: 21012922 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-31 475 DATE: March 8, 2021 REMANDED Entitlement to service connection for the cause of death is remanded. Entitlement to nonservice-connected burial benefits is remanded. REASONS FOR REMAND The service member served in the Army from September 1970 to June 1973. He died in February 2017. The Appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2017 and July 2018 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied claims for entitlement to service connection for the cause of death and nonservice-connected burial benefits. The Appellant appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (JMR) vacating and remanding the Board’s September 2019 denial of the Appellant’s claims. 1. Entitlement to service connection for the cause of death is remanded. 2. Entitlement to nonservice-connected burial benefits is remanded. The Appellant asserts that the liver cancer which caused her husband’s death was the result of tactical herbicide exposure (Agent Orange) during his service. She requests a change in the service member’s character of discharge from conditions other than honorable to “general.” See November 2020 Appellate Brief. VA benefits are only payable to and for veterans who were discharged under other than dishonorable conditions. 38 C.F.R. § 3.12(a). A discharge under other than honorable conditions will generally preclude VA benefits unless VA determines that the discharge was not under dishonorable conditions. The service member died in February 2017 with an immediate cause of death as hepatocellular carcinoma with metastasis to the bone (liver cancer). He served in the Republic of Vietnam from July 1971 to April 1972. His DD Form 214 lists a character of discharge as under conditions other than honorable. To this regard, military personnel records document four incidents of confirmed absences without official leave (AWOL), totaling 165 days, resulting in a recommendation that the service member be discharged by reason of unfitness. The Board notes that the issue of the character of the service member’s discharge is not presently on appeal before the Board. In a May 2018 statement of the case (SOC), the RO acknowledged that the character of discharge may be a bar to VA benefits, but did not make a determination as to eligibility. However, the cause of death and burial benefits claims presently on appeal before the Board, are inextricably intertwined with the issue of the service member’s character of discharge. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a claimant’s claim for the second issue). As such, the appeal is remanded for the RO to make a determination on whether the service member’s character of discharge is a bar to the receipt of VA benefits. If the nature of the service member’s discharge is not a bar to VA benefits, then obtain a VA medical opinion, as the McLendon elements necessitating a VA examination have been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(a)(1)-(3). Here, the service member had a current disability of liver cancer and herbicide exposure is presumed based on his service in the Republic of Vietnam. Thus, a remand is necessary to obtain a VA opinion. The matters are REMANDED for the following action: 1. After undertaking any additional development deemed appropriate, make a determination as to whether the service member’s character of discharge is a bar to the receipt of VA benefits. 2. If the nature of the service member’s character of discharge is not a bar to VA benefits, arrange for an appropriate health care provider to review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the service member’s cause of death listed as liver cancer had its clinical onset during service or is due to an event or incident of the service member’s period of active service, including herbicide exposure. In addition, in providing the opinion, the examiner must take into account the service member’s personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact that the service member’s liver cancer is not on the presumptive list of diseases associated with herbicide exposure. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Once the above requests have been completed, to the extent possible, readjudicate the appeal. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.