Citation Nr: 21025949 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-36 715 DATE: April 29, 2021 REMANDED Entitlement to service connection for an acute leukemia disability is remanded. Entitlement to a temporary total evaluation pursuant to 38C.F.R. §4.29 for hospital treatment more than 21 days related to the leukemia disability is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1996. He died in March 2018; the appellant is his surviving spouse. The Veteran’s surviving spouse requested to be a substitute claimant for her late husband’s claims that remained pending at the time of his death for purposes of seeing the claims to completion. An August 2019 letter from the RO indicated that the request for substitution was granted. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO)and Pension Center in Philadelphia, Pennsylvania. In a March 2020 decision, the Board denied the Appellant’s appeal for entitlement to service connection for leukemia; a temporary total evaluation pursuant to pursuant to 38C.F.R. §4.29 for hospital treatment in excess of 21 days related to the leukemia disability; and entitlement to TDIU. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, pursuant to a December 2020 joint motion for partial remand (JMPR), the Court vacated the Board's decision regarding the above appealed issues stating that the Board erred when it failed to consider satisfaction of the duty to assist the Appellant in developing her claim; to wit, by not obtaining a medical examination of a condition claimed for compensation in accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Court remanded the claims for a temporary total disability evaluation and TDIU as inextricably intertwined issues with the Appellant’s claim for service connection for leukemia. Accordingly, the appeal has been vacated and remanded to the Board for action consistent with the CAVC decision. 1. Entitlement to service connection for an acute leukemia disability is remanded. The Appellant contends that service connection for leukemia is warranted. VA's duties to assist claimants in the development of claims also may include scheduling a medical examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Medical treatment records indicate that the Veteran was diagnosed with leukemia at the time he filed his claim in October 2017. See October 2017 Medical Treatment Record - Government Facility. The Appellant has asserted that outstanding service documents would have shown that the Veteran is entitled to presumptive service connection for his leukemia. However, despite evidence of diagnosis of a leukemia disability, as well as evidence that it may be related to service, no VA examination or opinion was provided to the Veteran prior to his death. McLendon. The Board points out that, in cases of substitution, VA regulations recognizes that “rights that may have applied to the claimant prior to his death but which cannot practically apply to a substitute, such as the right to a medical examination, are not available to the substitute.” See 38 C.F.R. § 3.1010 (f)(3). Notwithstanding the fact that an in-person examination of the Veteran is not feasible at this juncture, given that the Veteran is now deceased, a remand is required for the AOJ to obtain an opinion on the etiology of the Veteran's leukemia disability, based on the available evidence of record. 2. Entitlement to a temporary total evaluation pursuant to 38C.F.R. §4.29 for hospital treatment more than 21 days related to the leukemia disability is remanded. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. A decision on the remanded issue of entitlement to service connection for leukemia could significantly impact a decision on the issues of entitlement to total temporary evaluation pursuant to 38C.F.R. §4.29 and TDIU because the issues are inextricably intertwined. Thus, a remand of the claims is also required. The matters are REMANDED for the following action: 1. Request for all outstanding service medical and personnel records that have not been associated with the claims file. 2. Obtain all outstanding VA treatment records pertinent to the Veteran's claim, specifically leukemia treatment records that have not been associated with the claims file. 3. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an opinion regarding the likely etiology of his leukemia. On review of the record, the examiner should: (a) Identify the likely etiology of the Veteran's leukemia. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the leukemia is related to his service (due to disease, injury, or event, or by onset, therein)? The examiner should review any lay statement from the Veteran, and his spouse (the appellant), regarding symptoms noted in-service as well as post-service. (b) If the answer to (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s leukemia was caused or aggravated by a service-connected disability? (c) If the Veteran’s leukemia is found to be unrelated to his service, identify the etiology for the disability considered more likely. The examiner should include rationale with all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. 4. After completing the above development in STEP 1, 2 and 3, and any other development deemed necessary or reasonably raised by the record, readjudicate the claim for service connection for leukemia. The claims for a temporary evaluation and a TDIU should be simultaneously adjudicated. If the benefits sought remain denied, furnish to the Appellant and her representative a supplemental statement of the case (SSOC) and an appropriate time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.