Citation Nr: 1648508	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  08-23 638	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Marenna, Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to December 1968.  He died in April 2007, and the Appellant is his surviving spouse.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.


REMAND

The Veteran died in April 2007.  His certificate of death listed the immediate cause of death as metastatic gastric carcinoma.  At the time of his death, service connection was not in effect for any disorder. 

The Veteran's service personnel records indicate that he served as a fuel specialist/refueling unit operator in the United States Air Force.  According to a September 1967 report, the Veteran delivered aviation fuels, oils, and mineralized water using the different types of assigned equipment.  An April 1968 industrial occupational physical reflects that the Veteran's duties as a fuel specialist/refueling unit operator exposed him to alcohol, aviation gas, JP-4, and oils.  He also reported that he had experienced "fatigue, dizziness, and skin rash."

The Appellant's representative has asserted that the Veteran's exposure to jet fuel and other chemicals caused his cancer.  The Board remanded the claim in December 2015 to obtain a medical opinion on the etiology of the Veteran's cancer.  In a March 2016 opinion, a VA examiner opined that the Veteran's death from metastatic gastric carcinoma, with contributing disorders that did not result in the immediate cause of death, to include anemia of chronic disease, hepatic failure, pneumonia, and congestive heart failure, were "less likely as not" caused by or a result of his active military service, to include his exposure to JP-4 fuel and/or other hazardous chemicals.   

In the rationale, the examiner stated "[a]n analysis of the available human data on occupational exposure to military fuel vapor does NOT provide a consistent body of evidence needed to support the conclusion that exposure to military fuels carries a risk of kidney cancer, hematopoietic cancer, or other cancer."  The VA examiner cited several medical articles including a 1996 article from the National Academy of Sciences, which stated the data did not provide a consistent body of evidence.  However, the article also noted that "[a]n analysis if the available human data on occupational exposure to military fuel vapor suggests a weak association with kidney cancer or other cancer."  In a September 2015 brief, the Appellant's representative included additional articles regarding cancer and exposure to chemicals in jet fuel.  The representative noted a 2008 study showed concern over the carcinogenic effects of inhaling the naphthalene in jet fuel.  The Board finds the rationale for the March 2016 opinion is inadequate.  The VA examiner did not fully explain why the available medical evidence did not provide a consistent body of evidence.  If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Additionally, where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, a new addendum opinion is needed to address the medical articles cited by the Appellant's representative in the September 2015 brief.  Therefore, the claim must be remanded for an addendum opinion.

Accordingly, the case is remanded for the following action:

1.  The RO must contact the Appellant and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim seeking entitlement to service connection for the cause of the Veteran's death.  Based on her response, the RO must obtain any evidence that has not already been associated with the paper claims file or electronic claims file. 

All attempts to secure this evidence must be documented by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.  If the RO is unable to secure any of the identified records, the RO must notify the Appellant and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Appellant is ultimately responsible for providing information.  The Appellant and her representative must then be given an opportunity to respond.

2.  Thereafter, an addendum medical opinion must be obtained from the March 2016 VA examiner, or if unavailable, a VA examiner of appropriate expertise, to clarify the relationship between the Veteran's diagnosed post-service metastatic gastric carcinoma and his active military service, to include exposure to JP-4 jet fuel while performing duties as a fuel specialist/refueling unit operator in the Air Force.  The electronic claims file must be made available to the examiner, and the examiner must specify in the opinion that these records have been reviewed. 

Based on a detailed review of the evidence of record, and with consideration of the statements made by the Appellant and her representative, the examiner must provide a medical opinion addressing whether the cause of the Veteran's death, metastatic gastric carcinoma, was related to his military service, to include as due to exposure to JP-4 jet fuel and other hazardous chemicals while serving as a fuel specialist/refueling unit operator in the Air Force.

The examiner must review and address the articles relating to jet fuel exposure provided by the Appellant's representative in the September 2015 brief.  

A complete rationale for all opinions must be provided. 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 there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

 3.  After the development requested has been completed, the RO must review the medical opinion to ensure that it is in complete compliance with the directives of this Remand.  If the medical opinion is deficient in any manner, the RO must implement corrective procedures. 

4.  Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must adjudicate the Appellant's claim of entitlement to service connection for the cause of the Veteran's death, taking into consideration all relevant evidence associated with the claims file and electronic records.  If the benefit remains denied, a supplemental statement of the case must be provided to the Appellant and her representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.

No action is required by the Appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This 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) (2015). 
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