BVA9507439 DOCKET NO. 93-13 605 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran performed active duty from August 1954 to November 1974. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision by the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO). REMAND Following transfer of the claims folder to the Board in June 1993, additional evidence was sent to the Board and received in June 1993. Reference is made to 38 C.F.R. § 20.1304(c) (1994). Under this regulation, evidence submitted to the Board will be referred to the RO unless it is accompanied by a written statement, signed by the appellant waiving consideration of the evidence by the RO. No such document accompanied the new evidence. The Death Certificate lists a "history of cerebrovascular accident" (CVA) as a significant factor contributing to death, but not resulting in the underlying cause of the veteran's death. An elevated blood pressure reading was recorded during service in 1970, and another episode of elevated blood pressure was recorded within a year of his separation from service. Based on the foregoing, the appellant's claim is well-grounded. The VA has the duty to assist appellants in developing the facts pertinent to well-grounded claims. 38 C.F.R. § 5107(a) (West 1991). During her April 1992 hearing at the RO, the appellant alleged that the lung disability reported in the service medical records resulted in the development of the lung cancer which caused the veteran's death. While the RO denied any relationship between the lung pathology noted in service and the lung cancer which caused the veteran's death, their determination is not based on medical reports discussing the claimed relationship. A question was raised during the autopsy concerning right cerebellar atrophy with Purkinje cell loss on the right side. The relationship of this finding to the cerebrovascular accident experienced in 1977 was raised. The findings might take on some significance when considering that elevated blood pressure readings were recorded within a year of the veteran's separation from service. It was indicated in the autopsy protocol that slides of the brain were to be sent to the Armed Forces Institute of Pathology (AFIP) for further evaluation. The results of that action have not been reported in the claims folder The VA has a duty to assist the appellant in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). The case is REMANDED for the following: 1. The additional evidence submitted by the appellant is to be reviewed by the RO. 2. Complete clinical records of the June 1991 VA terminal hospitalization and the treatment records from the Fort Lee Memorial Hospital in Fort Meyers, Florida are to be obtained and associated with the claims folder. 3. The results of the study by the AFIP are to be obtained and associated with the claims folder. 4. Once all of the records have been obtained, the case is to be referred to (1) A VA oncologist who is to review the record and provide an opinion as to whether the lung pathology noted in service is in any way related to the lung cancer which caused the veteran's death. Reasons and bases for the opinion are to be provided; and (2) A VA cardiologist who is to review the record and provide an opinion as to whether the elevated blood pressure readings noted shortly after service are in any way related to the CVA, that has been found to be a significant factor contributing to death, but not resulting in the underlying cause of the veteran's death. Reasons and bases for the opinion are to be provided. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development has been completed, to the extent possible. If any development is incomplete, appropriate corrective action is to be implemented. When the foregoing development is completed, all of the evidence should be reviewed and the case should be readjudicated by the RO. This should include a determination as to whether service connection is warranted for the contributory cause of death. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be furnished a supplemental statement of the case and afforded a suitable opportunity to respond. If the matter is not resolved to the appellant's satisfaction, the case should be returned to the Board, if in order, in accordance with the provisions of the laws and regulations regarding the processing of appeals. No further action is required of the appellant until she receives further notice. By this REMAND the Board intimates no opinion, regarding the decision warranted, either factual or legal. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).