Citation Nr: 0004459 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-19 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a malignant brain tumor for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the veteran's death including on the basis of exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from September 1948 to May 1952 and from July 1954 to January 1971. He died in June 1996 and the appellant is his widow. The appeal arises from the October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in pertinent part, denying entitlement to service connection for the cause of the veteran's death as a result of exposure to Agent Orange. In the course of appeal the appellant testified at a video conference hearing in August 1999 before the undersigned member of the Board. A transcript of that hearing is included in the claims folder. The first issue noted on the title page of this decision precipitates the remand which follows. In connection with the August 1999 Board hearing the appellant submitted a newspaper article written in German. The Board thereafter had this article translated into English. The newspaper article and the translation are now in the claims folder. REMAND The death certificate shows that the veteran died in June 1996, at age 64, from anaplastic astrocytoma (malignant brain tumor). The death certificate indicates that the veteran died at home. An autopsy was not performed. At the time of the veteran's death and during his lifetime, service connection was not in effect for any disability. The veteran's service form DD 214 for the service period from February 1967 to January 1971 indicates that the veteran completed in excess of one year and six months of service in Vietnam. That form also indicates that the veteran service in the Army Special Forces, and received awards and decorations including the Vietnam Service Medal, the Bronze Star Medal with "V" device, and the Combat Infantry Badge. He was also awarded the Republic of Vietnam Cross of Gallantry with Palm by the government of South Vietnam. The veteran's service medical records, including a service retirement examination in January 1971, are negative for findings of cancer. The first symptoms of a disorder affecting the brain in post- service medical records within the claims folder are dated in November and December, 1993, records of examination and treatment for episodes of amaurosis fugax about that time. The brain tumor causing death was subsequently clinically identified in 1995 as an anaplastic astrocytoma. Both issues noted on the title page of this decision are inextricably intertwined. During the veteran's lifetime he had appealed a September 1995 statement of the case denying service connection for a brain tumor. He was accorded an RO hearing on this issue before a hearing officer in January 1996. He was then too ill to appear at the hearing but his wife (the current appellant) appeared and testified on his behalf. Subsequent Supplemental Statements of the Case were issued to the veteran in February 1996 and March 1996. In July 1996, after the veteran's death, the appellant filed a claim for service connection for the cause of the veteran's death. It was filed on a multipurpose form (VA Form 21-534) also indicating that there was a claim for accrued benefits. In October 1996 an RO rating action denied service connection for the cause of the veteran's death based on herbicide exposure. The appellant was notified of the determination by a letter dated October 22, 1996, which also advised that accrued benefits were denied. In September 1997 she filed a timely notice of disagreement as to the October 1996 RO decision. This was a notice of disagreement as to the issue of entitlement to service connection for a malignant brain tumor for purposes of accrued benefits. The RO has not furnished the appellant a statement of the case as to this accrued benefits issue. In view of the fact that both issues are inextricably intertwined, the Board cannot decide the issue involving service connection for the cause of the veteran's death until the accrued benefits issue is in proper posture for appellate consideration. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that a claim which is inextricably-intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). Regarding the appellant's notice of disagreement with the RO decision on her claim of entitlement to accrued benefits, the Court has held that in situations such as this the Board should remand, rather than refer, the matter to the RO for the issuance of a SOC. See, e.g., Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) With respect to both the claim for service connection for a malignant brain tumor for purposes of accrued benefits, and the claim for service connection for the cause of the veteran's death including on the basis of agent orange exposure, the appellant contends that the malignant brain tumor, which caused the veteran's death, was due to the veteran's exposure to Agent Orange in service. With respect to such claims for service connection for a disorder as due to exposure to Agent Orange in service, the Board notes that a veteran who, during active service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) (1999), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. Diseases or disorders which have been positively associated with Agent Orange include soft tissue sarcomas, such as malignant schwannomas. Anaplastic astrocytoma is not such a disease entitled to the presumption, pursuant to the regulation. Here exposure to Agent Orange during service is established by the nature of the veteran's duties while in Vietnam, as supported by service records establishing combat service and statements by fellow soldiers. 38 U.S.C.A. § 1154(b) (West 1991); McCartt v. West, 12 Vet.App. 164 (1999). In the case of Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994), the U.S. Court of Appeals for the Federal Circuit found that, under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, a claimant was not precluded from presenting proof of direct service connection between a disorder and exposure even if the disability in question was not among statutorily-enumerated disorders which were presumed to be service related, the presumption not being the sole method for showing causation. See also McCartt. Hence, a claimant may establish service connection for anaplastic astrocytoma by presenting evidence which shows that it was as likely as not that the disorder was caused by inservice Agent Orange exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, upon remand, the appellant is to be afforded the opportunity to submit medical evidence establishing a causal link between her husband's exposure to Agent Orange in service, and the malignant brain tumor which caused his death. On remand, in the interest of administrative efficiency, the RO should reexamine these two claims to determine whether further development or review is warranted. If no further preliminary action is required, or when it is completed, the RO should prepare a Statement of the Case in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the notice of disagreement on the accrued benefits issue is withdrawn. See 38 C.F.R. § 19.26 (1999). The appellant should also be provided the opportunity for a hearing on these matters. If, and only if, a timely substantive appeal is received on the accrued benefits claim, should the accrued benefits claim thereafter be certified to the Board for appellate review. See 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (1999). The case is REMANDED to the RO for the following development: 1. The RO should appropriately contact the appellant and her representative, provide a letter explaining the application of Combee to the appellant's claims, and afford them the opportunity to submit a medical opinion to the effect that the veteran's inservice exposure to Agent Orange caused the veteran's anaplastic astrocytoma, or otherwise contributed to the cause of the veteran's death. They should also be afforded the opportunity of an additional personal hearing addressing the appellant's claims, if such hearing is desired. 2. If a medical statement is received addressing a causal link between Agent Orange exposure and either the veteran's anaplastic astrocytoma or his death, then the RO should complete all other appropriate development, including obtaining a medical opinion by a VA oncologist, if so indicated. 3. Thereafter, the RO should issue a Statement of the Case on the issue of entitlement to service connection for a malignant brain tumor for purposes of accrued benefits. The appellant and her representative are to be advised that they have sixty days from the date of mailing of the Statement of the Case to submit a substantive appeal as to that issue. 5. Whether or not the appellant or her representative timely files a substantive appeal as to the accrued benefits issue, if additional pertinent evidence has been submitted regarding the issue of entitlement to service connection for the cause of the veteran's death, the RO should readjudicate the claim. If the determination remains adverse to the appellant, she and her representative should be provided a Supplemental Statement of the Case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. They should be afforded the applicable time to respond. 6. If the appellant or her representative files a timely substantive appeal as to the accrued benefits issue, then that issue is to be returned to the Board and certified for appellate consideration. Regardless of that outcome, the case is to be returned to the Board for adjudication of the issue of entitlement to service connection for the cause of the veteran's death, including on the basis of exposure to Agent Orange. The purpose of this remand is to ensure due process of law and to comply with a precedent decision of the Court. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 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. 1999) (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. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).