Citation Nr: 1618834 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 11-24 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from December 1967 to December 1971. He died on September [redacted], 2009. By administrative decision dated in April 2011, the appellant was determined to be the Veteran's surviving spouse for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in December 2013. The transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). This case was remanded by the Board in April 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant contends that the Veteran was exposed to Agent Orange and other toxins during his active service that caused or contributed to his death. The Veteran died in September 2009. According to the death certificate, the immediate cause of death was cardiopulmonary failure due to non-ischemic cardiomyopathy and chronic obstructive pulmonary disease. Other significant conditions listed were hypertension and hyperlipidemia. Essentially the appellant contends that service connection for the cause of the Veteran's death is warranted based upon the presumption of exposure to herbicides such as Agent Orange. She contends that the Veteran was exposed to herbicides either from being stationed in Okinawa or from being in the Republic of Vietnam during flights he took as a Crew Chief with the Marine Heavy Helicopter Squadron-462 (HMH-462), 3rd Marine Aircraft Group, 1st Marine Aircraft Wing while he was stationed in Okinawa. Alternatively, she contends that service connection for the cause of the Veteran's death is warranted as his cause of death was related to exposure to various toxins he was exposed to during service as a helicopter mechanic and crew chief. She specifically has alleged that the Veteran's death could have been related to driers added to oil-based paints used on aircraft the Veteran worked on in service and submitted documentation that these driers contain cobalt, manganese and lead, and that these substances may be related to cardiomyopathy, chronic obstructive pulmonary disease and hypertension. She also contends that the Veteran was exposed to chemicals/toxins such as PCE, TCE and DCE while stationed at MCAS Tustin and El Toro from November 1968 to December 1970. She argues that El Toro is on the Superfund list and MCAS Tustin is just across the 405 freeway and, therefore, they shared the same groundwater. She claims that El Toro and Tustin were both closed in 1999 due to toxins on the bases. In April 2014, the Board remanded the appellant's claim for further development regarding her claims of exposure to herbicides and toxins and to include obtaining medical opinions to clarify the Veteran's diagnosis regarding his cardiomyopathy (whether it was ischemic or non-ischemic) and to determine the etiology of the conditions leading to the Veteran's death. In January 2016, the requested medical opinion was obtained after additional development had been conducted with regard to the appellant's contentions of exposure to herbicides and toxins in service. Unfortunately, the Board finds that neither the record before the Board nor the medical opinions provided are sufficient to render a decision at this time. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In regards to the appellant's allegations of exposure to herbicides and toxins, the Board finds that additional development is necessary regarding the appellant's claim that the Veteran was exposed to toxins at MCAS Tustin and El Toro. The Veteran's service records confirm he was stationed at the Marine Corp Air Field/Station, Santa Ana, California (also known as MCAS Tustin) from approximately November 1968 to January 1971 and that he spent one week at MCAS El Toro for training in 1969. The appellant alleges that both sites were closed in 1999 due to contamination. However, the only thing associated with the claims file regarding this claim was a memorandum regarding tactical herbicides in California, which is nonresponsive to the appellant's claim. Nothing has been associated with the claims file regarding these particularly bases and the types of contamination located on them and locations of such contamination to determination the likelihood of the Veteran having been exposed to such contamination while serving on those bases. The Environmental Protection Agency's website confirms that MCAS El Toro is a Superfund Site and was decommissioned in 1999 under the Base Realignment and Closure Act (BRACA). A total of 25 potentially contaminated areas were identified on the Air Station, including four landfills suspected of containing both hazardous and solid waste, and other areas where polychlorinated biphenyls (PCBs), battery acids, leaded fuels, and other hazardous substances were suspected of being dumped or spilled. A Remedial Investigation conducted by El Toro identified volatile organic compounds (VOCs), primarily trichloroethene (TCE), in groundwater that migrated more than three miles off base. See https://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/ ViewByEPAID/CA6170023208. As for MCAS Tustin, the EPA does not have any information regarding this base. An online search does, however, indicate that the base was closed in 1997 and that environmental contamination has been found on the base. This information also indicates that there are government reports specifying the types of contamination and the locations on the base where it was found. See http://www.globalsecurity.org/military/facility/tustin.htm. This information could be helpful to the VA examiner providing a medical opinion in determining whether the Veteran's cause of death was related to his service. Thus, on remand, these reports should be obtained and associated with the claims file if available. Regarding the medical evidence of record, the Board notes that the medical opinion refers to VA medical records that are not associated with the claims file. The VA examiner indicated that he reviewed the Veteran's electronic treatment records from October 22, 1997 to November 13, 2009 from the VA Medical Center in Muskogee, Oklahoma. The claims file, however, only contains a few excerpts of VA records submitted by the appellant, such as the discharge summary from the Oklahoma City VA Medical Center for a hospitalization from October to November 1997, and a few treatment notes from the Muskogee VA Medical Center from August 2001 to May 2002 and September 2009. In rendering his opinion, the examiner specifically relies upon a May 8, 2008 Cardiology consultation note, which is not associated with the claims file. The examiner also mentions an April 13, 1998 Primary note that is not part of the claims file. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Upon remand, the entire record of the Veteran's VA treatment reviewed by the VA examiner should be associated with the claims file. The Board also finds that the medical opinions provided are not acceptable as they are not supported by adequate rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). With regards to whether the Veteran's cardiomyopathy is related to service, the examiner opined that the Veteran's non-ischemic cardiomyopathy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In making this determination, he relied upon the May 8, 2008 findings of a VA Cardiologist who "clearly states that the non-ischemic cardiomyopathy is LIKELY RELATED TO ALCOHOL EXPOSURE. The Cardiologist indicated that while the Veteran stated that he last drank alcohol '5-6 years ago' the alcohol usage had resulted in the cardiomyopathy. The evidence less than likely supports that the Cardiomyopathy was caused by or worsened by any exposure to herbicides, fumes or toxins associated with helicopter maintenance, and/or contaminated military bases." (Emphasis in original.) In a February 2016 statement, the appellant took issue with the VA examiner's medical opinion pointing out that the Discharge Summary dated November 1, 1997 stated there was no true history of alcohol abuse. The Board notes that this treatment record is in the claims file and does in fact make this statement. To this extent, there appears to be an inconsistency in the treatment records as to the etiology of the Veteran's cardiomyopathy that the VA examiner did not address. Thus, his sole reliance on the May 2008 cardiologist's opinion without explanation of why the statement in the November 1997 Discharge Summary was not of consequence renders his opinion inadequate for rating purposes. Furthermore, the examiner's final sentence that the "evidence less than likely supports that the Cardiomyopathy was caused by or worsened by any exposure to herbicides, fumes or toxins associated with helicopter maintenance, and/or contaminated military bases" is merely a conclusion without a rationale. A VA medical examination report is entitled to no weight in a service-connection determination when it merely ventures a conclusion without appropriate explanatory reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Once VA undertakes the effort to provide an examination or obtain a medical opinion, it must provide an adequate one or explain why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, it does not appear that there is any reason that the VA examiner could not provide an explanation for his opinion. Thus, on remand, he should be asked to do so. In the January 2016 medical opinion, the VA examiner also opined that the Veteran's chronic obstructive pulmonary disease and hypertension were less than likely permanently aggravated by or a result of any event and/or condition that occurred in service and/or within one year of discharge. The examiner stated that the evidence in the service treatment records does not indicate that there was any diagnosis of hypertension and chronic obstructive pulmonary disease during service or caused by service as a helicopter repairman. Any causation of pulmonary disease more likely than not happened after service in relation to likely exposure to tobacco smoke passively and as exposure to any fumes from working in automobile repair and rebuilding as documented on the Certificate of Death. In her February 2016 statement, the appellant took exception with this medical opinion pointing out the Veteran was a life-time non-smoker and that he always used a respirator when working on automobiles while he was not issued one during his time in the military. The Board does not find the examiner's opinion to be inaccurate based upon the belief that the Veteran was a smoker as the examiner clearly opined that the Veteran's pulmonary disease was likely due to passive exposure to tobacco smoke. However, what is unclear is how the examiner came to that conclusion as he failed to set forth what evidence he relied upon in making that determination. This lack of explanation renders the opinion inadequate. Furthermore, given the appellant's contention that the Veteran wore a respirator when he worked in automotive repair, the Board believes that the examiner should reconsider that aspect of his opinion given this new information. Finally, the examiner did not address the appellant's contention that the Veteran's hypertension and chronic obstructive pulmonary disease were also related to his exposure to toxins from driers added to oil-based paints used on aircraft the Veteran worked on in service. Such should be addressed on remand. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the electronic file, to include any records outstanding from October 22, 1997 to November 13, 2009 from the VA Medical Center in Muskogee, Oklahoma. In particular, a May 8, 2008 Cardiology consultation note and an April 13, 1998 Primary note should be associated with the electronic record. 2. Contact the appropriate Federal agencies and request reports regarding findings of environmental contamination at MCAS Tustin and El Toro that demonstrate the type of contamination and the locations on the bases where such contamination was found. Such reports may include, but are not limited to, the Base Realignment and Closure Commission (BRAC) Cleanup Plan (BCP) last updated in March 1997, an Environmental Baseline Survey (EBS) published in April 1994 and Fiscal Year 1998. Associate all correspondence and any records received with the claims file. 2. Thereafter, return the Veteran's case to the VA examiner who provided the January 2016 medical opinion (or to another opinion provider if the January 2016 opinion provider is not available). The VA examiner should be asked to review this remand and any new evidence associated with the claims file since issuing the prior medical opinion. The examiner should provide a complete rationale for all opinions given. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. a. Non-ischemic cardio-myopathy - The examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's non-ischemic cardiomyopathy is related to any injury, disease or event incurred during the Veteran's active military service. Specifically, the examiner should consider and address whether the Veteran's non-ischemic cardio-myopathy is related to any of the following: i. Exposure to cobalt from driers mixed with oil-based paint while working on helicopters in the military. ii. Exposure to environmental toxins while serving at the MCAF/S Tustin from approximately November 1968 to January 1971 iii. Exposure to environmental toxins while serving at MCAS El Toro for one week of training in 1969. In rendering an opinion, the examiner should discuss the relevant evidence supportive of his/her opinion. The examiner should specifically discuss the seemingly conflicting comments regarding the etiology of the Veteran's cardiomyopathy being alcohol related made in the Oklahoma VA Medical Center's Discharge Summary from November 1997 and the May 8, 2008 Cardiology consultation note from the Muskogee VA Medical Center. Also a discussion of any medical and/or scientific literature or studies supporting the opinion may be helpful. b. Chronic obstructive pulmonary disease and hypertension - The examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) the Veteran's chronic obstructive pulmonary disease and/or hypertension is related to any injury, disease or event incurred during the Veteran's active military service. Specifically, the examiner should consider and address whether the Veteran's chronic obstructive pulmonary disease and/or hypertension is related to any of the following: i. Exposure to manganese and/or lead from driers mixed with oil-based paint while working on helicopters in the military. ii. Exposure to environmental toxins while serving at the MCAF/S Tustin from approximately November 1968 to January 1971 iii. Exposure to environmental toxins while serving at MCAS El Toro for one week of training in 1969. In rendering an opinion, the examiner should discuss the relevant evidence supportive of his/her opinion. Specifically, the examiner should consider the appellant's January 2016 statement that the Veteran always used a respirator when working on automobiles while he was not issued one during his time in the military. iv. If the examiner continues to opine that the Veteran's pulmonary disease was more likely related to exposure to tobacco smoke passively, the examiner should set forth what evidence is relied upon to establish that opinion. v. If the examiner continues to opine that the Veteran's pulmonary disease was more likely related to exposure to fumes from working in automobile repair and rebuilding, the examiner should explain why such is the case despite the appellant's contention regarding the Veteran's use of a respirator. Also a discussion of any medical and/or scientific literature or studies supporting the opinion may be helpful. c. Finally, if the examiner opines that the Veteran's COPD and/or hypertension is at least as likely as not related to his military service, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that such service-connected disability contributed substantially or materially to the Veteran's death, combined to cause his death, or aided or lent assistance to the production of his death. 3. Thereafter, the appellant's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the appellant and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).