BVA9501833 DOCKET NO. 91-46 634 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES Entitlement to service connection for the cause of the veteran's death. Entitlement to accrued benefits payable under 38 U.S.C.A § 5121. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active service from March 1951 to March 1954, January 1956 to December 1968, and from January 1972 to January 1976. This matter came before the Board of Veterans' Appeals (Board) from a December 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In May 1992, the Board remanded the case for further development. In September 1993, the case was returned to the Board for further appellate consideration. In a written communication received in February 1992 , the appellant appears to be raising a claim for compensation under 38 U.S.C.A. § 1151 (West 1991). The Board had implemented an administrative stay in such cases pending completion of appellate review in the matter of Gardner v. Derwinski, 1 Vet.App. 584 (1991); aff'd sub nom. Brown v. Gardner, 5 F.3d 1456 (Fed. Cir. 1993). The Supreme Court of the United States recently affirmed the decisions of the United States Court of Veterans Appeals and the United States Court of Appeals for the Federal Circuit. Brown v. Gardner, No. 93-1128, slip op. (U. S. Supreme Court December 12, 1994). In view of the foregoing, the matter is referred to the RO for further consideration. REMAND The appellant contends, in essence, that the veteran's fatal lung cancer was related to his exposure to either asbestos, Agent Orange or radiation during service. It is also argued that the service-connected disabilities were a material factor in the development of the fatal disease process or were a significant factor in his death. As for accrued benefits, it is argued, in essence, that the record at the time of death showed more severe symptoms of the service-connected bronchitis than reflected in the 10 percent rating that was in effect. The representative appears to have raised the issues of entitlement to accrued benefits based upon an increased rating for postoperative residuals, bilateral ureteroneocystostomy with nephrostomy and secondary service connection for a cardiovascular disability. These matters have been considered by the RO. The record reflects that the fatal carcinoma was initially suspected in August 1990, and cytology evaluation in September 1990 confirmed adenocarcinoma. The veteran died in October 1990, with the immediate cause of death certified as terminal stage carcinoma of the lungs. No other medical condition was listed on the death certificate as contributing to his death. We observe that the veteran served in the United States Navy from March 1951 to March 1954, and that his record of separation lists an occupational specialty of boiler tender (BT). Thereafter, he had active service in the United States Air Force. Lung cancer was initially reported more than three decades after his Navy service. The record reveals that he had a long smoking history reported to have been one pack daily for 45 years. There is no medical opinion on file regarding the etiology of the lung cancer. The VA General Counsel has held that under certain circumstances death or disability resulting from the identifiable residuals of disease due to tobacco use during service is compensable under the law governing VA benefits. VA O.G.C. Prec. Op. 2-93, 58 Fed. Reg. 42,756 (1993). Precedent opinions are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). In light of the foregoing, the Board concludes that further development, as specified below, is required. Accordingly, this appeal is REMANDED to the RO for the following actions: 1. The RO should request that the appellant provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who treated the veteran for any lung disorder, cardiovascular disorder, or genitourinary disorder after his separation from active service. With any necessary authorization, the RO should attempt to obtain copies of those treatment records identified by the appellant which have not been previously secured. 2. The RO should also request that the appellant provide a statement describing the veteran's smoking and asbestos exposure history, both during and subsequent to service, including when he quit smoking. She should be requested to describe how many packs of cigarettes he smoked on an average day during the period that he smoked. She should be invited to submit any other evidence which she believes is relevant to the veteran's smoking history and the development of his lung cancer. 3. Thereafter, the case should be referred to a board-certified oncologist, if available, for review. The specialist should be requested to review the claims file and provide an opinion as to the etiology of the veteran's lung cancer and whether it is at least as likely as not that it was etiologically related to tobacco use and/or asbestos exposure during service. A complete rationale should be offered for all opinions and conclusions expressed. 4. Thereafter, the RO should undertake any other indicated development and readjudicate the appellant's claim of entitlement to service connection for the cause of the veteran's death and the claim of entitlement to accrued benefits to include accrued benefits based on an increased rating for genitourinary disability and secondary service connection for cardiovascular disability. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and her representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with the proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until she is notified by the RO. J. J. SCHULE SHANE A. DURKIN (CONTINUED ON NEXT PAGE) N. R. ROBIN 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) (1993).