Citation Nr: 0811080 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-16 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1946 to November 1947. He died in October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board remanded this matter in February 2007 so that additional evidence could be developed. For the reasons outlined below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. REMAND The appellant contends that complications associated with the veteran's service-connected bilateral knee disabilities contributed to the veteran's diabetes and morbid obesity and ultimately his death. At the time of the veteran's death, service connection was in effect for status post right and left knee arthroplasties, rated in combination as 70 percent disabling; a total disability rating based on individual unemployability was in effect from January 16, 2002. The veteran passed away in October 2002. His death certificate lists the immediate cause of death as congestive heart failure, complications of diabetes mellitus due to arteriosclerosis due to diabetes mellitus. Other significant conditions contributing to death but not resulting in the aforementioned cause of death were obesity and retroperitoneal hemorrhage. As indicated in the Introduction, this claim was remanded in June 2007. Unfortunately, some of the ordered development remains to be completed. Accordingly, remand is mandatory. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board notes first that, as part of the June 2007 remand, the Board pointed out that there may be outstanding medical records regarding the appellant's claim. In his opinion dated in July 2007, the VA physician indicated that he had accessed and reviewed the veteran's treatment records from the Phoenix VA Medical Center. There records, however, have not been associated with the claims folder. Additionally, as this matter is being remanded, the Board also notes that the appellant, as part as correspondence received by VA in August 2007, asserted that she had "a box of records just don't know what to send." She should be specifically requested to supply VA with all medical records in her possession associated with treatment afforded the veteran. Therefore, the case is REMANDED for the following action: 1. The RO should take the necessary steps to obtain and associate with the claims folder all medical records of treatment afforded the veteran at the VA Medical Center in Phoenix, Arizona. 2. The RO should contact the appellant and specifically ask her to submit within 60 days all medical records associated with the veteran that she has in her possession. This should include the "box of records" she informed VA that she had in August 2007. 3. All medical records, if not previously on file, received from the appellant in response to the above request should be forwarded to the VA physician who supplied the July 2007 opinions. The physician should be asked to review all records associated with the claims file subsequent to July 2007 and provide comment as to whether newly submitted evidence acts to change in any manner the opinions he offered in July 2007. 4. In the event that the VA physician who supplied the July 2007 medical opinions is unavailable, the RO should refer the case to a qualified physician, who after reviewing the evidence of record, should respond to the following questions: a) What is the likelihood that the service-connected right and left knee disabilities caused the development of diabetes and/or morbid obesity? b) What is the likelihood that the service-connected right and left knee disabilities were the proximate cause of a chronic increase in severity of diabetes and/or morbid obesity? c) What is the likelihood that the service-connected right and left knee disabilities rendered the veteran materially less capable of resisting the effects of the conditions leading to the veteran's death or were of such severity as to have had a material influence in accelerating such death? d) What is the likelihood that the service-connected right and left knee disabilities otherwise contributed substantially or materially to the veteran's death? 5. The RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action in any respect has not been undertaken or is deficient in any manner, the RO must take appropriate corrective action. Stegall. 6. Thereafter, the RO should readjudicate the appealed issue. If the benefit sought on appeal remains adverse to the appellant, she and her representative should be provided a supplemental statement of the case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until she is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 Supp. 2007). _________________________________________________ WAYNE M. BRAEUER 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).