BVA9501025 DOCKET NO. 93-04 861 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from July 1941 to April 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) San Diego, California, Regional Office (RO). In an August 1991 rating decision, entitlement to service connection for the cause of the veteran's death was denied. REMAND In August 1991, the veteran's death occurred. The certificate of death lists an underlying cause of his death as metastatic oral squamous cell carcinoma. Metastatic laryngeal squamous cell carcinoma with laryngectomy and radical neck disection in 1982, was listed as another significant condition contributing to death. The death certificate further reveals that the veteran died at his residence, as distinguished from at a hospital and that an autopsy was not performed. In the August 1991 rating decision, service connection for the cause of the veteran's death was essentially denied on the basis that under 38 C.F.R. § 3.309(d), the veteran's cancer of the pharynx was not shown within the applicable 40 year presumptive period. Service connection for the cause of death, considering cancer of the larynx and the fact that the disease is neither a radio-presumptive disease under 38 C.F.R. § 3.309(d) (1993), nor a radiogenic disease under 38 C.F.R. § 3.311b (1993) (now 38 C.F.R. § 3.311), was also addressed. The RO also indicated that the veteran's service records did not show that his duties as a participant in the United States occupational forces in Japan during World War II, were within 10 miles of the city limits of Nagasaki or Hiroshima, Japan as provided in 38 C.F.R. § 3.309(d)(vi). Primarily, it is imperative to note that the 40 year presumptive period for service connection for diseases specific to radiation exposed veteran's under 38 C.F.R. § 3.309 (d) was eliminated by the Veteran's Radiation Amendment of 1992, Pub. L. 102-578 (1992). While service records show that the veteran was part of the occupational forces in Japan from September 1945 to June 1946, and in a July 1991 statement the veteran reported that he had engaged in foot patrols while in Nagasaki after the atomic bomb was dropped, the record is absent for any official verification of the whereabouts of his service unit, the 1st Tank Battalion/1st Marine Division FMF. Furthermore, we note that private clinical records from 1990 show that the veteran had squamous cell carcinoma of the hard and soft palate, which may or may not be associated with the pharynx. Another clinical record, specifically, a June 1991 hospital summary from a military facility reported a diagnosis of metastatic laryngeal carcinoma. It was noted that squamous cell carcinoma of the soft palate was felt to be a localized disease until the March to April 1991 time frame. Reportedly, this was the time when he was evaluated at the University of California at San Diego, and given chemotherapy without response. In one of the August 1991 statements from private physicians, it is reported that the veteran had an oropharynx lesion which was not related to the original cancer in 1982. Another such statement is unclear as to the exactly what the physician's opinion is. The Board concludes that a medical opinion from a VA oncologist indicating the primary site of the veteran's cancer in 1990, and whether the cancer, which was the underlying cause of his death was related to the laryngeal cancer in 1982, would be helpful. Additionally, the provisions of Combee v. Brown, No. 93-7107, 1994 WL 470364 (Fed. Cir. Sept. 1, (1994), reversing in part Combee v. Principi, 4 Vet.App. 78 (1993), should be considered, especially if laryngeal cancer is found to be a cause of the veteran's death. In that case it was held that a claimant must be given an opportunity to prove that his exposure to ionizing radiation during service actually caused the disability or disabilities for which he or she is claiming service connection and that service connection is therefore warranted under 38 U.S.C.A. § § 1110, 1131 (West 1991), and 38 C.F.R. § 3.303(d) (1993). It does not appear that the present claim was adjudicated on this basis. This rationale would likewise apply when the issue is service connection for cause of death. The appellant should be informed the she can submit evidence which proves the claimed causal relationship. Additionally, we note that clinical records from private clinicians who submitted statements in August 1991, and clinical records from 1982 when the veteran received treatment for laryngeal carcinoma are not associated with the claims folder. Private clinical records from April through May 1991 which are mentioned in a June 1991 report of hospitalization at the Naval Hospital in San Diego, California, are also not associated with the claims folder. The VA has a statutory duty to assist claimants with their claims under the provisions of 38 U.S.C.A. § 5107(a) (West 1991). The duty to assist applies to all relevant facts, not just those for or against the claim. Sayre v. Derwinski, 2 Vet.App. 224, 226 (1992). In consideration of the foregoing, this case is REMANDED to the RO for the following: 1. The RO should seek specific verification of the veteran's unit assignment's while in the 1st Tank Battalion/1st Marine Division FMF, from September 24, 1945 to June 24, 1946 as part of the United States occupational forces in Japan, also determining if he was within 10 miles of the city limits of either Hiroshima or Nagasaki, from the Defense Nuclear Agency (DNA), ATTN: RARP-NTPR, 6801 Telegraph Road, Alexandria, Virginia 22310- 3398. The response from the DNA should then be associated with the claims folder. 2. The RO should obtain copies of the veteran's complete clinical records from William S. Halsey, M.D., 9834 Genesee Avenue, Suite 128, La Jolla, California 92037, and associate those records with the claims folder. 3. The RO should obtain copies of the veteran's complete clinical records from Carl D. Myers, M.D., 9844 Genesee Avenue, Suite 224, La Jolla, California 92037, and associate those records with the claims folder. 4. The RO should obtain copies of the veteran's clinical records from March through April 1991 from the University of California Medical Center at San Diego, and associate those records with the claims folder. 5. The RO should obtain complete clinical records (hospital inpatient/and outpatient) of treatment of the veteran for laryngeal carcinoma in 1982 and thereafter, for association with the claims folder. 6. After obtaining the aforementioned clinical data, the RO should arrange for a VA oncologist to review the claims folder, and render an opinion specifying the primary site of the veteran's squamous cell cancer which was the underlying cause of his death, first reported in October 1990 and also opine whether the aforementioned cancer is related to the laryngeal cancer which was treated in 1982. 7. When the requested development has been accomplished, and if the claim is not allowed on another basis, the RO should readjudicate the claim based upon exposure to ionizing radiation in light of Combee v. Brown No. 93-7107, 1994 WL 470364 (Fed. Cir. Sept. 1, 1994). In the event the claim is not granted, the appellant and her representative should be furnished a supplemental statement of the case and provided an appropriate time to respond thereto. Thereafter, if necessary, the case and the requested evidentiary data should be returned to the Board of Veterans' Appeals for further appellate disposition. BRUCE E. HYMAN 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).