Citation Nr: 9826149 Decision Date: 08/31/98 Archive Date: 07/27/01 DOCKET NO. 97-17 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for a right shoulder disorder on an accrued basis. ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from April 1968 to December 1968. He qualified for a Rifle Marksman Badge on the M-14. As will be discussed below in detail, the veteran died in October 1995 due to cardiopulmonary arrest precipitated by underlying widespread metastatic melanoma including the spine. This appeal to the Board of Veterans' Appeals (the Board) is from rating actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles. The appellant, widow of the deceased veteran, twice scheduled personal hearings at the RO, in April and July 1998; she canceled the former and did not appear for the latter. The appellant also stated at the time of the scheduling of the second hearing that she and her attorney wanted to review the record. An attorney did not appear on her behalf; and there is no power of attorney of record for an attorney for the appellant in the current claims. The cause of death claim will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL In substance, it is argued that while the veteran had injured his right arm several years before entry into service and there were no functional or chronic residuals at entrance, his inservice injuries, dislocations, subluxations and treatment all served to aggravate any preexisting problem, and adequate evidence was of record to support such a claim at the time of the veteran's death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record is in favor of a grant of service connection for a right shoulder disorder on an accrued basis. FINDINGS OF FACT 1. A claim for service connection for a right shoulder disorder was pending at the time of the veteran's death; the appellant has since pursued the issue and perfected an appeal thereon. 2. Evidence deemed to have been of record at the time of the veteran's death raises a probability that the underlying pathology of the veteran's pre-existing right shoulder disorder increased in service beyond what might have been considered to have been attributable to the natural progress of the disorder. CONCLUSION OF LAW A preexisting right shoulder was aggravated by active service for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 1153, 5101, 5107, 5121 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.306, 3.327, 3.1000 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1997). The United States Court of Veterans Appeals (Court) has clearly indicated that this is not intended to limit a grant of service connection to those disabilities which were present in service or within a year thereafter, but also contemplates a chronic disability for which there is a credible medical opinion that there is a link between current disability and the in-service injury or disease. See, i.e., Caluza v. Brown, 7 Vet. App. 498 (1995). A preexisting disease or injury will be considered to have been aggravated by military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service based on all of the evidence. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b) (1997). In a case that dealt with asthma, but under circumstances which have certain given characteristics similar to those relating to the pertinent issue herein under consideration, the Court held in Crowe v. Brown, 7 Vet. App. 238 (1994), that, "Even if the veteran's asthma is properly found to have preexisted service, the presumption of aggravation must also be addressed. When a condition is properly found to have been preexisting (either because it was noted at entry or because preexistence was demonstrated by clear and unmistakable evidence), the presumption of aggravation provides: A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (emphasis added); see also 38 C.F.R. § 3.306(a). Furthermore, 38 C.F.R. § 3.306(b) provides that, as to veterans of wartime service, "[c]lear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation" during service. It is the Secretary's burden to rebut the presumption of in- service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). "[I]n short, a proper application of [38 U.S.C. § 1153 and 38 C.F.R. § 3.306 (a), (b)] . . . places an onerous burden on the government to rebut the presumption of service connection" and "in the case of aggravation of a preexisting condition, the government must point to a specific finding that the increase in disability was due to the natural progress[ ] of the disease". Akins, 1 Vet. App. at 232. Other cases have delineated the distinctions between temporary exacerbations of a preexisting disability in service, or "temporary or intermittent flare-ups" versus permanent increases in underlying pathologies, and have described how comparisons can be made in such instances, and how there must be worsening in the underlying condition not merely the symptoms. See Verdon v. Brown, 8 Vet. App. 529 (1996); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The law and regulations governing claims for accrued benefits state, in essence, that upon the death of a veteran, his lawful spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. §§ 5101, 5121; 38 C.F.R. § 3.1000; see also Jones v. Brown, 8 Vet. App. 558 (1996), rev'd sub nom. Jones v. West, No. 96-7041 (Fed.Cir. Feb. 11, 1998), to the effect that the veteran must have had a claim pending at the time of death or else be entitled to such benefits under an existing rating or decision. Although the appellant's claim for accrued benefits that is at issue in this appeal is separate from the claim for service connection that the veteran may have filed prior to his death, the accrued benefits claim is "derivative of" the claim for service connection and, by statute, the appellant takes the veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996) which was also confirmed in Jones v. West, op. cit. The Court has noted that what is meant by "evidence in the file" is not explicitly defined within Title 38, nor is its meaning clearly implied elsewhere in the statute. See consolidated cases Conary v. Derwinski and Coxey v. Derwinski, at 3 Vet. App. 109 (1992). Numerous Court cases have clarified and delineated this issue as to what constitutes evidence in the file at the time of death, versus what may be appropriately considered as having been of record, to include medical opinions elicited for the purposes of clarification, evaluation and assessment of the evidence that was in the file, etc. In addition, the Court has identified additional circumstances when even in an accrued benefits case, additional evidence in the way of clarification may be required to complete an application under 38 U.S.C.A. § 5121(c). See Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993) in which the Court held that evidence in the file at the date of death may include private hospital and examination reports actually received or even submitted after the date of death. In Hayes at 358, the Court noted that 38 U.S.C.A. 5121(a)(West 1991) 26 provides, as relevant here, that a veteran's surviving spouse may receive "accrued benefits" consisting of up to one year of due but unpaid benefits to which the veteran "was entitled . . . based on evidence in the file at date of death." See generally Conary v. Derwinski, 3 Vet. App. 109, 115 (1992) (Steinberg, J., concurring) (section 5121(a) requirement that there be evidence in the file at date of death is one of the basic statutory eligibility requirements for accrued benefits claim). (But see part III.C., infra). Title 38, Code of Federal Regulations, section 3.1000(d)(4)(i)...further provides: (4) Evidence in the file at date of death . . . will be considered to have been met when there is on file at the date of the veteran's death: (i) ...evidence, including uncertified statements, which is essentially complete and of such weight as to establish service connection...when substantiated by other evidence in file at date of death or when considered in connection with the identifying, verifying, or corroborative effect of the death certificate. 38 C.F.R. § 3.1000(d)(4)(i) (emphasis added and in original). Despite this language, the BVA, in its second decision states, curiously, that § 3.1000(d)(4)(i) speaks of the mere fulfilling of ministerial duties such as certification of necessary documents. That regulation permits the filling in of missing details, not the building of the entire case. To apply the regulation in any other way would be to permit the case to be made almost entirely after the veteran's death... Whatever redundancy and lack of clarity is contained in this regulation, what is clear is that § 3.1000(d)(4)(i), on its face, applies only to evidence in the file at date of death and the death certificate and, does not, by its terms, contemplate the submission of any other post-death evidence. ... The Court discussed this in the context of the evidence in the Hayes case, specifically, and further noted in Hayes at 359 that One final regulatory provision needs to be considered. Appellant argues, in essence, that 38 C.F.R. § 3.1000(d)(4)(ii) permits consideration of evidence "affecting entitlement" not in the file at date of death....While not a model of clarity, the language of the regulation applies only to cases involving reductions in accrued benefits as a result of hospital treatment, or institutional or domiciliary care by the VA and claims for increases in accrued benefits as a result of the existence of dependents. Neither situation is present in this case. Whatever difficulties the Court may encounter in coming to grips with this regulation in the future, the Court does not have to consider it in this case. The Court further noted in Hayes at 360-1, that (W)hile 38 U.S.C.A. § 5121(a) permits only evidence in the file at date of death, 38 U.S.C.A. § 5121(c) appears to contradict, or at least qualify, that provision by stating, "If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application" within one year from the date of such notification. In this regard, the legislative history is silent regarding congressional intent. See Veterans Benefits Act of September 2, 1958, Pub. L. No. 85-857, § 3021, 72 Stat. 1228. Given this ambiguity, the Secretary has wide latitude in establishing departmental policy as to what post-date- of-death evidence may be considered. See N.L.R.B. v. United Food & Commercial Workers Union, 484 U.S. 112, 123 (1987); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)...(when the relevant statute is ambiguous, the agency's interpretation will generally be sustained as long as it reflects a permissible construction of the statute). However, the regulatory framework that has been established to implement § 5121(a), (c) is confusing at best. We have already discussed, in part III.B., 38 C.F.R. § 3.1000(d)(4)(i). In sum, the only post-death evidence literally permitted by this provision is the death certificate. Yet, as referenced in part II., supra, the BVA stated that this provision allows more than just the death certificate, permitting the "fulfilling of ministerial duties such as certification of necessary documents . . . [and] the filling in of missing details." Superimposed on this regulation and the BVA's interpretation of it, is a confusing array of provisions of the VA Manual, M21-1 (Manual), scattered amongst two chapters, regarding what post-date- of-death evidence is acceptable. See VA Manual, M21-1, 5.25, 27.08. To the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have "'the force of law' . . . [as they affect] a substantive right [of appellant to accrued benefits,] and . . . placement in a procedural manual cannot disguise [the] true nature [of these provisions] as . . . substantive rule[s]." Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (citations omitted). VA Manual, M21-1, 5.25 (a) permits certain government documents to be considered as being in the file at date of death even though actually put into the file post date of death: a. Evidence in File at Date of Death. Evidence "in file" includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service Department records; (2) Reports of VA hospitalization; (3) Reports of treatment of examinations in VA medical centers including those in outpatient treatment folders; (4) Reports of hospitalization, treatment or examinations authorized by VA; and (5) Reports of autopsy made by VA on the date of death. In addition, VA Manual, M21-1, 5.25 (b) states, in relevant part, that "[t]he cited regulations [38 C.F.R. § 3.1000(d)(4) and § 3.327(b)(1) (1992)] also provide for the acceptance of evidence after death for verifying or corroborating evidence 'in file' at death." The exceptions called for by 5.25 (a), (b) are not set forth in either § 3.1000(d)(4) or the second BVA decision, as already discussed in part III.B. Title 38, C.F.R. § 3.327(b)(1) deals with scheduling a reexamination in a compensation case and provides that any hospital report and any examination report from a military hospital or from a State, county, municipal or other government hospital or recognized private institution which contain descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition of the organs or body systems for which claim is made may be deemed to be included in the term "Department of Veterans Affairs examination." 38 C.F.R. § 3.327(b)(1) (emphasis added). In Hayes at 361, the Court further discussed specific data found within that case to include hospital reports submitted after death, and found it to clearly fall within the scope of § 3.327(b)(1) and thus, is so "deemed," within the scope of 5.25 (b). Moreover, because these documents may now qualify as VA examinations, they may also fall within the scope of 5.25 (a)(2), (a)(3). Thus taken together, these Manual and Code of Federal Regulations provisions may require that these reports, even though submitted after death, nevertheless, be considered. (emphasis added) Other Court cases have discussed this or a similar view, see also Lathan v. Brown, 7 Vet. App. 359 (1995); Zevalkink v. Brown,. op. cit.; and Smith v. Brown, 10 Vet. App. 330 (1997). Factual Background The original service medical records show that at the time of the pre-induction examination in February 1968, the veteran said he had broken his right arm in a car accident for which he had required surgery 2 1/2 years before. He said that all metal had been removed surgically. The examiner noted that the veteran had surgical scars of the right shoulder and arm but no evidence of ankylosis or instability. He was noted to have had a fracture of the right humerus in 1965 which was treated by open reduction and internal fixation with an intramedullary rod. In April 1968, the veteran complained of some right arm pain but range of motion was said to be within normal limits. An X-ray of the right shoulder and humerus taken in May 1968 showed an old well healed fracture of the mid-shaft of the humerus. Anatomic alignment was good and there was no evidence of metal fixation. It was reported that the metal had been removed about a year and a half before. The veteran had had some pain in the area since entering service. Evidence of record shows that in service, the veteran sustained a dislocation of the right shoulder while climbing a rope during boot camp. In the period from July to August 1968, while in advanced infantry training at Camp Pendleton, he sustained at least three more dislocations and/or subluxations. It was suggested that he might require surgery. A report dated in August 1968 is of record from the private physician, an orthopedic surgeon, R. Dignam, M.D., who evaluated the veteran during that time, and had also treated him for the compound fracture of the right humerus in 1965. When he had seen him again in 1968 [while on leave after having had another right shoulder dislocation], Dr. Dignam recommended hospitalization and operative repair of the now recurrent dislocations. Service records also show that a letter was submitted in September 1968 from the veteran's father to the service department asking that his right shoulder disability be reviewed and action considered. The Medical Board examination report shows loss of motion of the right shoulder of 20 degrees abduction and 40 degrees of elevation. The veteran had pain on forward flexion and backward extension. There was significant guarding on attempts at external rotation and abduction. There was 1/2 inch atrophy of the right arm as compared to the left. There was a longitudinal scar along the course of the cephalic vein in the mid-aspect of the right arm, a scar on the medial aspect of the right arm approximately 2 cm. long, and a scar over the right humeral head. Moderate atrophy of the right shoulder girdle was also noted. Although the service department ultimately determined that the veteran's pre-existing right shoulder disability had not been aggravated in service, there are several discussions of record in the file as to whether he had or had not had actual dislocations and actual subluxations prior to service, and if not, since there was documentation of both as a result of inservice training and exercises, etc., whether this constituted aggravation. Separation diagnosis was instability, right glenohumeral joint following surgery with recurrent dislocations. In August 1995 the veteran filed a claim for service connection for a right shoulder disability. Although the record is unclear, but since an RO letter denying the claim is of record, albeit undated, it appears that the veteran also filed a claim for reimbursement of unauthorized medical expenses at St. John's Hospital from July 10 to 15, 1995. The RO requested that the veteran provide evidentiary documentation with regard to his right shoulder claim. A VA document is of record showing that on October 11, 1995, scheduling was requested by the RO, and the following day, October 12, 1995, scheduling was instituted by the VA medical facility for the veteran's undergoing a VA examination for the pending right shoulder disability claim. Although a copy of any notification letter to the veteran is not of record, the date of the scheduled examination appears from the file to have been October 25, 1995. A report of contact is of record dated on October 25, 1995, to the effect that he had failed to appear for the examination. Unfortunately, on October [redacted] 1995, [13 days before the scheduled examination] the veteran died. Service connection had not been granted for any disability during the veteran's lifetime. In June 1996, the appellant contacted VA to inquire as to the status of the veteran's right shoulder claim, and specifically, whether she was going to have to go ahead and pay for the unauthorized medical expenses for the veteran's right shoulder hospitalization in July 1995. Associated in the file with that statement are copies of extensive private treatment records including from St. John's Hospital from 1969 to 1971 with regard to ongoing care including surgery for his right shoulder dislocations. Also in that group of documents is a copy of certain service separation documentation with annotations thereon. None of these documents are date stamped as to receipt by VA. The appellant also specifically asked that the right shoulder claim be continued. She also filed a VA Form 21-534 with regard to death benefits. The shoulder claim was denied by the RO in December 1996. The appellant immediately returned a copy of the notice sent to her by the RO of that denial with a hand written notation that the conclusions reached by the RO with regard to the right shoulder were not true. The appellant specifically pointed out that the RO had stated that the veteran's service medical records showed that while he had had recurrent dislocations of the dominant right shoulder which had existed prior to service, this was not aggravated by service. She argued that this was not in fact what had been decided. To this Notice of Disagreement (NOD), the appellant attached a copy of a letter from the veteran's acting commanding officer at Camp Pendleton, dated October 10, 1968, responding to the veteran's father's September 1968 letter [mentioned above and filed in the service folder] to the effect that: "(T)he doctor has determined that the injury to your son was sustained prior to entry into the Marine Corps and this injury is the reason for the recurrent shoulder dislocation." In another Notice of Disagreement (NOD) in January 1997, the appellant stated that there were in fact two issues pending, one relating to the right shoulder and the other relating to melanoma, and that the latter had not been addressed at all. [On March 17, 1997, the RO subsequently issued two rating actions, one granting nonservice-connected pension benefits on an accrued basis, and the other denying service connection for the cause of death]. On the same date as the rating action by the RO, and date stamped as received March 17, 1997, the appellant submitted a VA Form 21-4138 to which she attached copies of medical evidence dated in the 1960's and 1970's from Dr. Dignam. The appellant cited that the decision by the RO had stated that there was no evidence that the inservice situation had permanently aggravated the preexisting right shoulder problems; she argued that the medical evidence was clearly to the contrary. The evidence submitted from Dr. Dignam was dated from 1965, before service, as well as on several occasions after service, particularly for the period of time for which the clinical records had been submitted prior to the veteran's death, dated in 1969, 1970 and 1971, constituting the treatment soon after separation from service. In essence, the physician's clinical notations showed a history of relative lack of any residuals of a chronic nature after the initial 1965 injury and care; that in and soon after service, the veteran had had recurrent and increasingly problematic dislocations and subluxations; and that the problems had become chronic and involved soreness, limitation of motion, and notwithstanding surgery, his situation was such that he might well have frequent recurrences in the future. In a Substantive Appeal, a VA Form 9, filed in May 1997, the appellant made it quite clear that her appeal was on both issues shown on the front page of this decision. In June 1997, the RO issued a rating decision in which both of the above mentioned claims were denied, noting that accrued benefits had been paid based on the March 1997 rating [only, it should be noted, however, on nonservice-connected pension benefits not the issue now at hand]. The RO also granted special monthly pension on account of need for regular aid and attendance from August 21, 1995. The Statement of the Case (SOC) issued by the RO in June 1997 indicated that the statements from Dr. Dignam were received after the veteran's death and could not be considered in the accrued benefits claim. Admissibility of Evidence From the outset, and for reasons detailed in pertinent part in the cases cited above, the Board would note that the Court has held that there is a somewhat inconclusive regulatory and advisory distinction made in situations such as the instant case between the evidence technically filed and "of record" at the time of the veteran's death and the rather singularly limited information filed shortly thereafter. Thus the issue becomes what, if any of this evidence, may be "deemed" of record at the time of death. However, the Board would parenthetically note that this type of evidence in question in the instant case relates to two types. In the first instance, the appellant provided a copy of a document which was to the veteran's father from the veteran's commander, dated October 1968, and clearly part of his service record and thus presumed to be part of the official record. It is irrelevant when it became actually filed in the claims folder. Pursuant to the exceptions clearly identified in VA Manual M21-1 5.25 (a)(1) (see also Hayes v. West, op. cit.), this document is clearly subject to consideration in an accrued benefits case such as this. In the second instance, the evidence consists of extensive and occasionally illegible copies of records of care of the veteran for right shoulder problems at St. Johns Hospital in the 1960's and 1970's. It also consists of clinical records and an associated discussion or review of care and clarification of some of the entries and contents of those records by Dr. Dignam, whose other records and comments were already in the file. It is these pivotal records that the RO has particularly found to be not subject to review in the accrued benefits claim. The Board notes that under long-standing interpretations, some if not all of Dr. Dignam's most recent discussions would probably be acceptable in an accrued benefits claim since they are interpretative or explanatory of, but not necessarily separate evidentiary entities from, that documentation already in the file from Dr. Dignam. This, however, need not be fully addressed since they clearly fall within the following exceptions. A more troublesome question is raised as to whether the copies of actual pertinent and pivotal 1965, 1969 and 1970-1 clinical records might be also accepted in the accrued benefits claim under prevalent regulations and judicial guidelines. In this case, the circumstances are unique and also appear to fall within a legitimate exception to the rule. Specifically, the Board is mindful of the fact that after the veteran filed his claims for service connection prior to his death [and the tangential claim for unreimbursed medical expenses for private treatment for the disability at issue, his right shoulder], he was immediately and appropriately scheduled for a VA examination. Unfortunately, he died before that examination could take place. It is not inconceivable that the examination, had it been conductible, might well have sustained the grant of service connection for his right shoulder disability on the basis of inservice aggravation. In any event, the Board is mindful of the provisions of 38 C.F.R. § 3.327(b)(1), as cited above, specifically as they pertain to a claim such as the one herein concerned, as interpreted by the Court in Hayes, that these documents fall within the exceptions of "deemed" within the scope of VA Manual M21-1 5.25(b); and moreover, because they may also qualify as VA examinations, they may also fall within the scope of 5.25(a)(2) and (a)(3). Accordingly, the Board finds that all of the evidence now in the file, and as cited in detail above, and relating to the veteran's right shoulder disorder, may be used in the adjudication of the appellant's accrued benefit claim. Analysis A review of the overall evidence of record shows that while the veteran had fractured his right humerus in 1965 as a result of an auto accident, the injury had been repaired surgically, and a year or so later, the metallic fixture had been removed. At the time of the veteran's service entrance, by all accounts, contemporaneously expressed by both his private physician and the service department itself, there were no significant residuals, and no functional incapacitation including limitation of movement, etc. In boot camp, the veteran experienced his first of a long line of dislocations, with inservice evidence of increased functional limitations in each instance. After four more dislocations prior to August 1968, he was thought to perhaps need surgery. His symptoms then included chronic pain, limitation of motion, and other impairments, etc., none of which had been identified at entrance. The Medical Board summary, which may be easily compared to the essential normal findings at service entrance, shows rather significant right shoulder impairment. The post-service records show that these problems did not abate, but the down-hill trend in the status of his right shoulder disability continued and became a chronic problem with exacerbations and repeated hospital care and treatment through 1969 well into 1970-1 and thereafter, to be present even in the short months prior to the veteran's death in 1995. In summary, the Board finds that there are ample and reasonable bases for concluding that the veteran's pre- existing right shoulder disability increased during service well beyond what might have been reasonably anticipated in the natural progression of the disorder, and service connection is warranted on the basis of inservice aggravation. Since there was a claim pending at the time of the veteran's death, and since the appellant has fully addressed all procedural and substantive criteria in an appropriate manner to stand in her husband's place in that regard, service connection for a right shoulder disorder on an accrued basis is warranted. ORDER Entitlement to service connection for a right shoulder disorder on an accrued basis is granted. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The appellant married the veteran in 1981. In the veteran's claim for service connection for melanoma in 1995, he stated that in 1968, while still at Camp Pendleton in training in preparation for being shipped to Vietnam [which did not then occur due to the right shoulder problems], he suffered a serious case of sunburn. That is not documented in the current record. The veteran said that later, after surgery at the VA Medical Center in West Los Angeles on his left ear [apparently the initial area of melanoma] in 1986, he was told by VA that this inservice sunburn had developed a melanoma. At the time of the claim, he was still being treated at that facility for the same disability. Evidence of record shows that the veteran received ongoing care for malignant melanoma and eventually died in 1995 of that disability which had by then widely metastasized. The only VA records in the file with regard to melanoma are summary listings without clinical information except for shortly before death, including a few from the period from 1992 and 1995. The Court has repeatedly found that VA has an obligation to obtain or assist the veteran in obtaining all such clinical records of which there is notice. See, i.e., Epps v. Brown, 9 Vet. App. 341 (1996). There is no credible medical opinion of record with regard to the veteran's melanoma. The Court has repeatedly admonished that VA cannot substitute its own judgment or opinion for that of a medical expert and must review the record based on the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) and Brown v. Brown, 5 Vet. App. 413 (1993). In addition, the Court has also addressed the general issue of malignant melanomas [including but not limited to as the result of alleged exposure to the sun while on active duty], and in particular, has mandated that the possibility of such a relationship in any given case must be thoroughly assessed and evidence developed as required for a comprehensive and equitable determination. See, i.e., Douglas v. Derwinski, 2 Vet. App. 103 (1992); Schoonover v. Derwinski, 3 Vet. App. 166 (1992); Nash v. West, No. 97-749 (U.S. Vet. App., Feb. 23, 1998); and Wandel v. West, No. 94-1110 (U.S. Vet. App. Apr. 7, 1998). Pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1997), the Board is deferring adjudication of the issue of entitlement to service connection for the cause of the veteran's death pending a remand of the case to the RO for further development as follows: 1. The appellant should be requested to provide the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who treated the veteran for any cancer and/or skin lesions or disorders including but not limited to that eventually diagnosed as malignant melanoma. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the appellant's response, the RO should secure all outstanding VA treatment reports and clinical data including pathological materials, slides, blocks, studies, etc., including from all post-service care to include but not limited to care in or about 1986 and since for an ear disorder and/or all aspects of the veteran's melanoma including for his later years. 2. If the claim is well grounded, the RO should arrange for a comprehensive assessment of the entire file and a thorough written evaluation by a board of appropriate specialists, for the purpose of ascertaining the nature, extent of severity, date of onset, origin and etiology of the veteran's melanoma, its relationship to inservice sun exposure, and other relevant factors, including any impact that there may have been between the veteran's now service-connected right shoulder disorder and/or treatment or incidents related thereto [including during private hospitalization therefore shortly before his death], and the veteran's death in 1995. The claims file and separate copies of this remand must be made available to and reviewed by the examiners prior to their assessments. The examiners must be requested to express opinions as to the relative probabilities as to whether sun exposure in 1968 may be reasonably considered the cause of the melanoma shown on or about 1986 which continued to the veteran's death in 1995. It would be helpful if the experts would provide documentary and/or treatise support for any theories espoused in their reports. Any opinions expressed must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested actions have been completed. In particular, the RO should review the requested reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 4. After undertaking any development/actions deemed appropriate in addition to that outlined above, the RO should readjudicate the issue of service connection for the cause of the veteran's death pursuant to all pertinent theories and regulations. If the benefit requested on appeal, for which a notice of disagreement has been filed, is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be provided. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997).