Citation Nr: 1754171
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 08-11 009 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUES

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

2. Entitlement to service connection for a heart disorder, including as secondary to herbicide exposure.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by: Robin Hood, Attorney

WITNESSES AT HEARING ON APPEAL

The Appellant, R.W.S., and T.C.

ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Army from December 1965 to October 1967. He had service in the Republic of Vietnam, and earned the Combat Infantryman Badge. He died in August 2011. The appellant claims as his surviving spouse.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran’s claims of entitlement to service connection of a heart disorder and TDIU, as well as from a May 2013 rating decision issued by the RO in Philadelphia, Pennsylvania, which denied the appellant’s claim of service connection for the cause of the Veteran’s death. The RO in St. Petersburg, Florida currently has jurisdiction over this appeal.

As noted, the Veteran passed away in August 2011, during the pendency of the appeal. The appellant claims as the Veteran’s surviving spouse; she is substituted as the appellant for purposes of adjudicating the Veteran’s claims to completion. 38 U.S.C. § 5121A (allows for substitution in case of death of a claimant who dies on or after October 10, 2008).

The Veteran testified before the undersigned Veterans Law Judge at an August 2016 hearing at the RO. A transcript of the hearing has been associated with the record.

These matters were remanded in November 2010, January 2015, and June 2016 for additional development. The case was returned to the Board for appellate consideration.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

Based on a review of the documents in the Veteran’s claims file, it appears that the RO did not consider the most recent evidence of record pertaining to the claim of entitlement to service connection for a heart disorder . Additional evidence, including an August 2016 VA medical opinion report, has been associated with the Veteran’s claims file. As a result, the RO must consider all evidence pertaining to the appellant’s claims on appeal in the first instance. Therefore, the claims must be remanded for this procedural step to be completed. See 38 C.F.R. § 19.31(c) (the agency of original jurisdiction is to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect).

As the issue of entitlement to service connection of a heart disorder cannot be adjudicated at this time, the Board finds that a decision on the remaining issue of entitlement to TDIU must be deferred to allow the RO the opportunity to adjudicate the claim of entitlement to service connection for a heart disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).
The appellant is claiming service connection for the cause of the Veteran’s death. At the time of the Veteran’s death, service connection was in effect for posttraumatic stress disorder, tinnitus, bilateral hearing loss, and a fracture of the right third finger. The Veteran’s death certificate states that the Veteran’s death was caused by cardiac arrest, due to or as a consequence of acute respiratory distress syndrome, due to or as a consequence of airway obstruction from throat cancer; other significant conditions contributing to death, but not resulting in the underlying causes of death, were squamous cell cancer and renal transplant.

To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service caused, or contributed substantially or materially to cause, that death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2016). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2016). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2016).

The Board observes that the Veteran’s claims for service connection for lung cancer and a respiratory disorder other than lung cancer, including as secondary to Agent Orange, were denied. However, no medical opinion as to whether the Veteran’s squamous cell carcinoma of the throat is related to his service, including secondary Agent Orange exposure, has been obtained. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Accordingly, the Board finds that a VA opinion is necessary to determine whether the Veteran’s death was caused by his service. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should contact the appellant and request that she submit any outstanding clinical records for the Veteran dating prior to his death. She should be informed that, in the alternative, she may provide the names and addresses of any health care providers who provided treatment with authorization for VA to obtain such evidence on her behalf.

If any of the records requested are unavailable, the AOJ should clearly document the claims file.

2. After completion of the above development, the AOJ should forward the claims file to a VA examiner. The examiner should review the claims folder and documents contained in the electronic claims folder. The examiner is requested to provide the following opinion:

a) The VA examiner should indicate whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran’s service, including his presumed exposure to Agent Orange, caused or materially contributed to the Veteran’s death from throat cancer.

b) The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran’s service-connected disabilities contributed substantially or materially to his death.

A complete rationale for any opinions expressed must be provided.

3. When the development requested has been completed, review the case on the basis of additional evidence. The RO must consider all of the evidence received since the Board’s June 2016 remand.

If any benefit sought is not granted, the appellant should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
ROBERT C. SCHARNBERGER
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) (2016).

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