Citation Nr: 21032773 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-19 528 DATE: May 27, 2021 ISSUE Entitlement to service connection for the cause of the Veteran's death. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active service from September 1962 to July 1964, with Reserves service. He died in September 2012. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, and has been subsequently transferred to the RO in St. Petersburg, Florida. In September 2016 the Appellant testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing sitting in St. Petersburg, Florida. A transcript of the hearing is of record. When this case was previously before the Board in September 2017, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Appellant states that the Veteran's death was a result of his Reserve service, to include Agent Orange exposure. The Veteran died in September 2012, with the cause of death listed as pancreatic cancer. The Veteran was not service-connected for any disabilities at the time of his death, nor were there any pending claims. At the September 2016 hearing, the Appellant testified that although the Veteran was never in Vietnam, he was on a ship that came back from Vietnam during his Reserve service. The Appellant explained that for about a year the Veteran worked on a ship that returned from Vietnam. The Appellant states that she was told by doctors that the Veteran had an infection that was similar to those found in people with Vietnam service. Therefore, the Appellant asserts that the Veteran's condition, which caused his death, was the result of his work onboard a ship, to include Agent Orange exposure from working onboard a ship. To establish service connection for the cause of a veteran's death, evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 C.F.R. § 3.312 (2016). For periods of Reserve service, service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing Active Duty for Training (ACDUTRA), or for injuries incurred or aggravated while performing Inactive Duty for Training (INACDUTRA). 38 U.S.C.A. §§ 101 (22)-(24), 106(d), 1110 (West 2014); 38 C.F.R. § 3.6 (c), (d), 3.303 (2016). In the September 2017 remand, the Board noted that the Veteran's complete military personnel record, to include his Reserve records, was not associated with the electronic claims file. Thus, upon remand, the Board instructed that such records be requested. In response to the remand, the Board notes that a June 2019 VA 21-3101 request for information stated that "all available STRS [service treatment records] were previously uploaded to VBMS". However, the Board notes again that it is service personnel and not service treatment records that are requested. As such, remand is warranted to request such service personnel records. Additionally, the Board found in the September 2017 remand that appropriate development concerning the Veteran's asserted Agent Orange exposure should be completed. That is, although the Board recognized that the disease of pancreatic cancer, of which is listed as the Veteran's cause of death, is not one of the presumptive diseases listed in 38 C.F.R. § 3.309 (e), but if exposure to a herbicide is presumed or proven by the evidence, a veteran may establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting medical evidence of a nexus between the disease and his exposure to herbicides during military service (or another incident of service). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (which holds that a claimant is not precluded from establishing service connection for a disease with proof of direct causation). Therefore, the Board directed that should Agent Orange exposure be found, the that the RO obtain a VA medical opinion as to the cause of the Veteran's death. In response to the Board's remand, Defense Personnel Records Information Retrieval System (DPRIS) responses in 2019 stated that the Agent Orange requests had not been researched as sufficient information to conduct such research was not submitted. Subsequently, the Appellant submitted photographs in December 2019 and an Internet article regarding exposure to environmental chemicals and heavy metals and the risk of pancreatic cancer. It was argued that the Veteran was stationed aboard maritime vessels, worked in the engine room, and was exposed to fuel, solvents, heavy metals, and Benzene. It was argued that the photographs that were submitted showed the Veteran worked aboard the U.S. Army T-433, and it was requested that Agent Orange exposure as related to this vessel be researched. As such, the Board finds that additional research should be conducted to determine if the Veteran served aboard the U.S. Army T-433; and if so, Agent Orange exposure as related to this vessel should be researched. If it is determined that the Veteran served aboard the U.S. Army T-433, a VA opinion should be obtained as outlined below. The matters are REMANDED for the following action: 1. Perform any development necessary to determine: (a.) Whether the Veteran served aboard the U.S. Army T-433. (b.) If the Veteran is determined to have served aboard any ship during service, determine whether that ship was within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was aboard. 2. Obtain for association with the electronic records the Veteran's complete service personnel records, to include the Veteran's complete Reserves records, for the purpose of determining which ships the Veteran worked on during his active duty and Reserve service. 3. If the RO cannot locate all relevant records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any records would be futile. The RO must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond. 4. Thereafter, contact the Veterans Benefits Administration (VBA) (that now internally researches requests previously sent to the Joint Services Records Research Center), the Department of the Army, and any other appropriate source and request that they determine if it is reasonable to conclude that a Veteran who worked onboard ships returning from Vietnam during his Reserve service (ACDUTRA/ INACDUTRA) would be exposed to Agent Orange. Information sought should include whether such ships were in Vietnam; if so, whether they were exposed to Agent Orange; and if so, ascertain whether there are any studies or indications that the ships used in Vietnam might have had significant residue of Agent Orange after use in Vietnam. Any response received must be documented in the record. 5. If, and only if, a positive response is received from the service department, the RO must then obtain an opinion from an examiner with the appropriate expertise to opine as to the etiology of the pancreatic cancer which caused the Veteran's death. The claims folder must be made available and reviewed by the examiner in conjunction with the preparation of an opinion report. The examiner should also review a copy of this remand. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, death certificate, and the Appellant's assertions. The examiner is reminded that the Veteran was not service-connected for any disabilities during his lifetime. His death certificate shows that he died in September 2012, and the cause of death was listed as pancreatic cancer. The examiner is to opine as to whether it is at least as likely as not that the Veteran's cause of death (pancreatic cancer) was caused by or otherwise related to his military service, including his herbicide exposure therein or exposure as related to working in an engine room aboard a ship, to include exposure to fuel, solvents, heavy metals, and Benzene (again, only if such exposure has been established as noted above). An opinion should be furnished notwithstanding the fact that there may not be a presumed association. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (which holds that a claimant is not precluded from establishing service connection for a disease with proof of direct causation). A clear rationale for all opinions should be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Thereafter, the RO should readjudicate the claims. If any claim remains denied, the RO must issue a supplemental statement of the case and afford the Appellant and her representative an opportunity to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.