Citation Nr: 21039986 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-37 159 DATE: July 2, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), for accrued purposes is remanded. Entitlement to service connection for metastatic carcinoma of the lung, for accrued purposes is remanded. Entitlement to service connection for colon condition, for accrued purposes, is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status, for accrued purposes is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to death pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1973 to May 1981. The Veteran died December 2, 2013. The Appellant is his surviving spouse. In the Appellant's March 2017 VA Form 9, she requested a Board videoconference hearing. A hearing was scheduled for June 2021. However, the records indicate that the Appellant cancelled the hearing. Therefore, the Board finds that her request for a hearing has been withdrawn. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Appellant's claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that VA examinations are needed to determine the etiology of the claimed conditions. Entitlement to service connection for PTSD, for accrued purposes is remanded. Prior to the Veteran's death, he alleged that he suffered from PTSD as a result of mistreatment and abuse that he suffered during service. Following the Veteran's death, the Appellant has continued his contentions. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a mental health disability. However, the Veteran's service records do reflect that he served as a correctional officer at Fort Leavenworth during his active duty service. Furthermore, both prior and after the Veteran's death, statements were submitted by his fellow servicemen who indicated that they witnessed the Veteran dealing with depression and nightmares during service. In addition, one of the lay statements also described threats received by the Veteran as well as abuse suffered by the Veteran at the hands of the inmates. The Board notes that it does not appear that any development was conducted to verify the Veteran's allegations of in-service stressors. As this is critical to adjudicating the relevant service connection claim on appeal, the Board finds that a remand is needed to ensure adequate and exhaustive development. The Board further notes that post-service treatment records reflect treatment for and a diagnoses of mental health disabilities, to include a possible PTSD diagnosis. As the Veteran and the Appellant have provided reliable testimony as to possible in-service stressors as well as post-service diagnoses, the Board finds that an etiological opinion is warranted. However, no VA examination has been conducted. Therefore, on remand, a VA medical opinion should be obtained to determine the etiology of the claimed mental health disabilities. Entitlement to service connection for metastatic carcinoma of the lung and a colon condition, for accrued purposes are remanded. Prior to the Veteran's death, he alleged that he suffered from lung cancer and a colon condition as a result of his active duty service. Specifically, he contended that he was exposed to Agent Orange while in his service. Following the Veteran's death, the Appellant has continued his contentions. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of a lung or colon condition. However, post-service treatment records reflect a possible colon condition as well as lung cancer. Furthermore, the Veteran's death certificate lists metastatic differentiated carcinoma of the lung as his cause of death with Agent Orange exposure as a significant contributing factor. The Board notes that while it was indicated that the Veteran's records do not reflect service in the Republic of Vietnam, there are other ways that the Veteran could have been exposed to Agent Orange, and it does not appear that any development was conducted to verify the Veteran's allegations of exposure. As this is critical to adjudicating the relevant service connection claims on appeal, the Board finds that a remand is needed to ensure adequate and exhaustive development. Furthermore, as the Veteran and Appellant have provided reliable testimony as to possible exposures during service as well as post-service diagnoses, the Board finds that etiological opinions are warranted. However, no VA examinations have been conducted. Therefore, on remand, VA medical opinions should be obtained to determine the etiology of the Veteran's claimed lung and colon conditions. Entitlement to SMC based on aid and attendance/housebound status, for accrued purposes is remanded. The Board finds that the matter of entitlement to SMC is inextricably intertwined with the service connection claims being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, final adjudication of the claim for SMC must be deferred at this time. Entitlement to service connection for the cause of the Veteran's death and entitlement to death pension benefits are remanded. The Board finds that the Appellant's claim for service connection for the cause of the Veteran's death is inextricably intertwined with her claims for service connection for PTSD, metastatic carcinoma of the lung and colon condition. Furthermore, her claim for death pension benefits is inextricably intertwined with her claim for service connection for the cause of the Veteran's death. Thus, consideration of her claims for cause of death and death pension must be deferred pending the outcome of the appeals for PTSD, metastatic carcinoma, and colon condition. See Harris, 1 Vet. App. at 180. The matters are REMANDED for the following action: 1. Conduct exhaustive development to obtain the Veteran's complete service personnel records and any other pertinent records from the service department, Department of Defense, or any other relevant source to assist in verifying his allegations of herbicide exposure in service (i.e., that he was exposed to Agent Orange). Once that development is complete, the AOJ should forward the entire record to the appropriate locations to verify the Veteran's allegations. The AOJ must initiate as many inquiries as necessary to cover the entirety of the Veteran's active service period. 2. If any records sought are deemed unavailable, the AOJ must document all efforts taken to obtain such records and the reason for their unavailability. The AOJ must also document the findings of its research for the record. 3. The AOJ must also ask the Appellant to confirm the dates, locations, and circumstances of the Veteran's reported in-service stressors, specifically the threats and abuse while stationed at Fort Leavenworth. Based on the responses, inquiries should be made to all appropriate sources, to verify the reported stressors. Per the explanation above, the AOJ must ensure that the entire period which is identified is covered by the inquiries, submitting multiple 60-day requests if necessary. The AOJ should issue a formal finding documenting the scope of the inquiry, the steps taken, and the ultimate findings. 4. A VA medical opinion should be obtained to determine the etiology of the claimed PTSD. The record should be made available to and be reviewed by the examiner. The examiner is asked to furnish opinions with respect to the following questions: a) Identify whether the Veteran had any psychiatric disabilities, to include PTSD, prior to his death, and at any time during the pendency of the claim. b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability, to include PTSD, had its onset during any period of service, or is otherwise related to such periods of service, to include the reported mistreatment and abuse suffered by the Veteran while stationed at Fort Leavenworth. The examiner is asked to provide a complete rationale for all opinions and conclusions reached. 5. A VA medical opinion should be obtained to determine the etiology of the claimed metastatic carcinoma of the lung. The record should be made available to and be reviewed by the examiner. The examiner is asked to furnish opinions with respect to the following questions: a) Identify whether the Veteran had metastatic carcinoma of the lung, prior to his death, and at any time during the pendency of the claim. b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed metastatic carcinoma of the lung, had its onset during any period of service, or is otherwise related to such periods of service, to include the alleged exposure to Agent Orange. The examiner is asked to provide a complete rationale for all opinions and conclusions reached. 6. A VA medical opinion should be obtained to determine the etiology of the claimed colon condition. The record should be made available to and be reviewed by the examiner. The examiner is asked to furnish opinions with respect to the following questions: e) Identify whether the Veteran had any colon conditions, prior to his death, and at any time during the pendency of the claim. f) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed colon condition, had its onset during any period of service, or is otherwise related to such periods of service, to include the alleged exposure to Agent Orange. The examiner is asked to provide a complete rationale for all opinions and conclusions reached. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.