Citation Nr: 0006519 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 95-09 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1971. He died in November 1991, and the appellant is his widow. By a February 1992 decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. However, the question of whether the veteran's death was related to inservice exposure to Agent Orange was not then addressed by the RO. In a December 1992 notice of disagreement with that February 1992 decision, the appellant stated that she continued to contend that the veteran's death was due to exposure to Agent Orange in service. The RO notified the appellant in a February 1993 letter that it had not yet addressed the issue of entitlement to service connection for the cause of death due to Agent Orange exposure, and informed her that such a decision would be deferred pending VA promulgation of new regulations pursuant to the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11 (1991). The VA subsequently issued a notice and regulations pursuant to the Agent Orange Act in May 1993, January 1994, and February 1994. See Diseases Associated With Service in the Republic of Vietnam, 58 Fed. Reg. 29107 (1993), Disease Not Associated with Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341 (1994), and Disease Associated With Exposure to Certain Herbicide Agents, 59 Fed. Reg. 5106 (1994). The RO in May 1994 notified the appellant that her claim of entitlement to service connection for the cause of the veteran's death due to exposure to Agent Orange had been denied. She thereafter perfected an appeal to the Board. The Board in October 1997 remanded the claim for further development. In the Introduction to that Remand, the Board referred to the RO the issues of entitlement to death pension and accrued benefits, and also referred the issue of the veteran's son's entitlement to VA benefits pursuant to 38 U.S.C.A. §§ 1801-1806 (West 1991 & Supp. 1999). The RO addressed the issue of entitlement to accrued benefits in an April 1998 decision denying such benefits. The decision was not appealed, and accordingly the claim of entitlement to accrued benefits is not currently before the Board. The claim for death pension benefits still remains pending at the RO. The RO should take appropriate action on this issue. In an April 1998 letter advising the appellant of the denial of accrued benefits, the RO also advised the appellant of the existence of an entitlement to benefits for a child with Spina Bifida who is a child of a Vietnam veteran, and provided the appellant with VA Form 21-0304 for filing of such a claim. It appears that such a claim has not been filed. The October 1997 Board Remand was preceded by a December 1996 Board hearing. The Board member who conducted the December 1996 Board hearing and who signed the October 1997 Board remand has left the Board. As such, the appellant was accorded an opportunity to have a further Board hearing. She did testify again, and a transcript of an October 1999 hearing before the undersigned Board member is included in the claims folder. At that second hearing, the undersigned Board member granted a 30 day period, in which the case was held open, to allow the appellant to submit additional evidence in support of her claim. In a FAX received at the Board on December 3, 1999, the appellant requested a further 60 day extension to allow her to submit additional evidence. The undersigned Board member communicated with the appellant's representative and granted that further extension. Both of these extensions have elapsed, and no additional evidence has been forthcoming. Accordingly, the Board here addresses the appellants claim as is, without the benefit of further submissions. REMAND The appellant contends that the veteran died as a result of esophageal carcinoma due to Agent Orange exposure in service in Vietnam. To establish service connection for the cause of the veteran's death, the evidence must show that some disability incurred in service or aggravated by service either caused or contributed substantially or materially to the cause of death, or was of such severity as to have had a material influence in accelerating death. 38 U.S.C.A. §§ 1310, 1312 (West 1991); 38 C.F.R. § 3.312 (1999). The Board, in its prior October 1997 Remand determined that the appellant's claim for entitlement service connection for the cause of the veteran's death due to Agent Orange exposure was well grounded, based in part on a death certificate stating that esophageal cancer contributed to death, and in part on a January 1995 medical opinion letter of A. R. Thalinger, M.D., a private physician. The relevant opinions expressed by Dr. Thalinger were that an esophageal carcinoma contributed to death, and that exposure to Agent Orange in service resulted in a subsequent increased incidence of malignancy. See Ramey v. Brown, 9 Vet.App. 40, 46 (1996); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). While the undersigned Board member here concurs with the October 1997 former Board member's determination that the appellant's claim is well grounded, the Board nonetheless finds that further development is required to address two elements of the appellant's claim: a causal link between inservice exposure to Agent Orange and the development of esophageal carcinoma, and whether post operative residuals of esophageal carcinoma caused or contributed substantially or materially to the cause of death, or were of such severity as to have had a material influence in accelerating death. Veteran's death certificate informs that the veteran died of multiple disorders including post operative esophageal carcinoma. A January 1995 letter by A. R. Thalinger, M.D., includes the medical opinion that the veteran died of multiple causes including complications from squamous cell carcinoma of the esophagus. However, the claims file also contains terminal hospitalization records from Presbyterian Health Services, Charlotte, North Carolina, and an autopsy report from the same medical center. In the autopsy report it is stated that the veteran's esophageal cancer was surgically removed with an associated anastomosis of the remaining portion of the esophagus to the stomach in May 1991. This was approximately six months prior to the veteran's death in November 1991, and the autopsy report further notes that there was no evidence of recurrence of the esophageal carcinoma upon autopsy. This evidentiary conflict between the death certificate and the private physician's opinion on one side, and the autopsy report on the other, leaves unresolved the question of whether post operative residuals of esophageal carcinoma caused or contributed substantially or materially to the cause of death, or were of such severity as to have had a material influence in accelerating death. Remand for a medical opinion addressing this question is required. The other question to be addressed is whether that esophageal cancer was due to Agent Orange exposure in service. As the Board noted in its October 1997 Remand, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (1999). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1999), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1999) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and sub-acute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). During the pendency of this appeal, the Court decided the appeal of McCartt v. West, 12 Vet. App. 164 (1999), holding that the veteran will be presumed to have been exposed to Agent Orange if the veteran served in Vietnam during the Vietnam Era only if the veteran thereafter develops one of the diseases enumerated in 38 C.F.R. § 3.309(e), for which there is a presumption of service connection based on Agent Orange exposure. Otherwise, there is no presumption of exposure to Agent Orange in service in Vietnam, and the claimant must establish by affirmative evidence both the veteran's exposure to Agent Orange and a causal link between such exposure and that disorder for which there is no presumption in 38 C.F.R. § 3.309(e). In this case, the veteran has not been shown to have developed a disorder enumerated in 38 C.F.R. § 3.309(e), and the question of exposure to Agent Orange in service in Vietnam must be determined based on a weighing of the evidence presented. Here, the veteran's service Form DD214 informs that he served on active duty from January 1968 to January 1971, and that he received a Vietnam Campaign Medal, a Vietnam Service Medal, two Overseas Bars, and a Vietnam Cross of Gallantry with Palm. These awards fairly well establish that the veteran served in Vietnam during the Vietnam Era. The Vietnam Cross of Gallantry suggests that the veteran may have engaged in combat or been in combat situations in Vietnam. The claims file also contains an August 1983 VA medical report recording a statement by the veteran that he served in the military as an Army Specialist 4, Supply Distribution, and was in transport convoys in Vietnam from Cu Chi to Tay Ninh. He then also reported that he was exposed to aerial spraying of Agent Orange during these convoy operations. Based on this evidence, the Board concludes that it is reasonably possible that the veteran was exposed to Agent Orange in service in Vietnam during the Vietnam Era. The Board therefore concludes that there was such exposure, pursuant to McCartt. With exposure to Agent Orange established, the appellant must still establish a causal link between such exposure and the veteran's development of esophageal cancer. As noted above, in his January 1995 letter, Dr. Thalinger reported that the veteran had died of complications of squamous cell carcinoma of the esophagus, and added, "It is well established scientifically that there is an increased incidence of malignancy after exposure to [Agent Orange]." The Board in October 1997 remanded the claim, in part, for a further statement from Dr. Thalinger explaining the medical or scientific basis for his statement regarding Agent Orange. Despite RO letters to Dr. Thalinger in November 1997 and January 1998, no response was forthcoming. As such, the Board finds that Remand is also in order for a medical opinion, informed by a complete review of the veteran's record, by a VA oncologist, addressing the question of a causal connection between Agent Orange exposure in service and the veteran's subsequent development of esophageal cancer. The case is therefore REMANDED to the RO for the following development: 1. The claims file including a copy of this remand should be referred to a VA oncologist, who should review the entire record and this remand, and answer the following questions: 1) Whether it is at least as likely as not that esophageal cancer was causally related to exposure to Agent Orange during the veteran's service in Vietnam, and 2) Whether it is at least as likely as not that post operative residuals of esophageal cancer caused or contributed substantially or materially to the cause of death, or were of such severity as to have had a material influence in accelerating death. 2. The RO should thereafter readjudicate the appellant's claim of entitlement to service connection for the cause of the veteran's death. 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. The case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to procure clarifying data and to comply with precedent decisions 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).