Citation Nr: 0810661 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-33 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from June 1965 to May 1967. The appellant is the veteran's spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Los Angeles, California. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND It is the appellant's contention that the veteran's service- connected post-traumatic stress disorder (PTSD) contributed to his death from cardiovascular disease. Specifically, she alleges that after September 11, 2001, his psychiatric symptoms increased, resulting in his inability to sleep and increased anxiousness. Ultimately, his cardiovascular symptoms increased and he died after collapsing in 2002. The record shows that the veteran was treated at a private facility in January 2002 for cardiovascular complaints. He was seen in February 2002 at VA for psychiatric symptoms, to include sleep disturbance. It was noted that his psychiatric symptoms had increased after September 11, 2001. Apparently, there was some lack of compliance with taking his medications after that date. The veteran's death was precipitated by his collapse at church on June 20, 2002. The veteran's wife said that he had been seen at VA by a cardiologist the day before. At the time of the episode, he had not had any chest pain or palpitations and was feeling well. He appeared to feel well until the moment before he arrested. He had not complained of any dizziness or vomiting prior to the episode, and he did not appear to be short of breath. Multiple organ failure was noted, and he ultimately died several days later. The veteran's death certificate reads that the veteran died on June [redacted], 2002. The immediate cause of death was cardiomyopathy, and a significant condition contributing to death was listed as post traumatic syndrome. After the veteran's death, in a rating determination in November 2002, service connection was established for PTSD. Service connection was specifically denied for hypertension and for cardiomyopathy with congestive heart failure. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(4) (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). It is noted that no additional notice of assistance or development has been provided subsequent to the specific provisions of the recently decided Hupp case. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Such notice is indicated as other development is undertaken. In this case, additional evidentiary development is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), and any other applicable legal precedent. Such notice should specifically apprise the claimant of the evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. The RO/AMC should also specifically request that she provide any evidence in her possession that pertains to the claim as explicitly required by 38 C.F.R. § 3.159(b). 38 U.S.C.A. § 5103(a) and (b) (West 2002 & Supp. 2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO should also ensure that any supplemental VCAA notice is in compliance with the guidance set forth in Hupp, supra. A record of this notification must be incorporated into the claims file. 2. The RO/AMC should, with the assistance of the appellant as indicated, attempt to obtain the physician who signed the death certificate. If he can be contacted, he should be requested to provide the medical basis he used in listing post traumatic syndrome as a contributing cause of death. He should also be asked to provide copies of any treatment records that he has that he used in making the determination. If he cannot be located, or if located, does not provide an opinion/basis for the opinion, attempts to reach him or obtain the opinion should be documented in the claims folder. 3. Refer the appellant's claim for a VA medical opinion to ascertain the etiology of the cardiac event that caused the veteran's death. The claims folder should be made available to the examiner for review prior to rendering an opinion. A rationale based on the evidence should be provided for any proffered opinion. Specifically, the examiner should provide an opinion as to whether there is a 50 percent probability or greater that the cardiac event that caused the veteran's death was the result of his service- connected PTSD. The examiner should also determine if PTSD contributed substantially or materially to the appellant's death or whether the cardiac event was so overwhelming that death could be anticipated regardless of coexisting conditions. It is important that the examiner reconcile any opinion with the evidence in the claims folder. Attention is specifically invited to the VA psychiatric treatment records, the terminal private treatment records from June 2002, and to the veteran's death certificate. It should be indicated whether the PTSD aggravated the cardiovascular disorder so as to cause death. If it is concluded that there is no relationship between the cause of death and the PTSD, that should be spelled out with the medical basis for the opinion provided. 4. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The appellant must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).