Citation Nr: 0814558 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-17 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1310 based on service connection for the cause of the veteran's death, to include a claim for benefits for the cause of the veteran's death under 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from March 1967 to December 1970, and apparently had additional unverified reserve component service. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied DIC under 38 U.S.C.A. § 1310 on the basis of entitlement to service connection for the cause of the veteran's death. The appellant is the veteran's surviving spouse. In her May 2005 substantive appeal, the appellant raised a claim of entitlement to benefits for the cause of the veteran's death under 38 U.S.C.A. § 1151. The record reflects that the RO accepted this claim as a new claim for service connection for compensation for benefits for the cause of the veteran's death, and provided the appellant with notice of the criteria for entitlement to benefits under 38 U.S.C.A. § 1151. The RO did not thereafter readjudicate the claim for compensation for service connection for the cause of the veteran's death before certifying the claim to the Board for appellate review. The appellant thereafter submitted additional evidence regarding the claim for benefits under 38 U.S.C.A. § 1151. There is no date stamp which establishes the date and location of receipt of this evidence by VA. The order of evidence in the claims file suggests that the additional evidence was submitted directly to the Board. The appellant, through her representative, waived consideration by the agency of original jurisdiction of the additional evidence submitted to the Board. The appellant contends that the claim under 38 U.S.C.A. § 1151 is before the Board, and contends that the Board has jurisdiction to complete appellate review. The appellant is entitled to a statement of the case (SOC) which addresses this claim. Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds that the claim for benefits for the veteran's death under 38 U.S.C.A. § 1151 is inextricably intertwined with the claim for compensation for the veteran's death under 38 U.S.C.A. § 1310. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As the RO has not adjudicated this intertwined issue, the claim must be Remanded. 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 The veteran was awarded service connection for residuals of a laceration of the right upper arm in a December 2002 rating decision which was issued to the veteran in January 2003. This was the only disability for which service connection was granted during the veteran's lifetime. The appellant submitted a July 2004 death certificate which reflects that the veteran's death in July 2004 resulted from "cerebral hemorrhage" due to "atherosclerotic heart disease." In a January 2005 rating decision and an April 2005 statement of the case (SOC), the RO explained that there was no evidence that the veteran's death was due to his service-connected right arm disability and that there was no evidence linking cerebral hemorrhage or atherosclerotic heart disease to the veteran's service. The appellant then alleged that VA's failure to timely diagnose atherosclerotic heart disease caused delay in treatment of atherosclerotic heart disease, and alleged that the delay in treatment due to VA's actions caused the veteran's death. VA clinical records demonstrate that, after the veteran was afforded VA examination of the right arm in November 2002, he was provided VA outpatient treatment in February 2003, March 2003, April 2003, and May 2004. These records also reflect that the veteran had a private (non-VA) health care provider. There is no other record of any other scheduled VA treatment or request for VA treatment. February 2004 private outpatient clinical records from A.B.L., MD, disclose that the veteran complained of headaches. Laboratory examinations and an electrocardiogram examination were conducted. The physician recommended that the veteran undergo cardiolite (nuclear medicine stress test) examination. The notes reflect that the veteran was to "call soon" to schedule that examination, but he postponed the examination because his mother was ill. The record does not disclose that the veteran completed this examination. The veteran was again seen by his private physician, Dr. L., in July 2004, and a carotid bruit was noted. Several examinations were scheduled. A medical statement from J.R.E., MD, dated in mid-July 2004, reflects an opinion that the testing disclosed a month-old infarction in the basal ganglia and a right parietal lesion several days old. In a statement received by VA in May 2005, the appellant alleges that the veteran contacted his representative and requested assistance in obtaining a VA appointment for the examination recommended by Dr. L. in February 2004. No evidence from the veteran's representative substantiating this allegation is of record. The appellant should be afforded an opportunity to submit such evidence. The appellant also alleges that the veteran was advised in May 2004 that a "stress test" would be scheduled. The appellant indicates that there are records that a cardiac evaluation was scheduled in June 2004. The appellant has not submitted these records, and no records reflecting that the veteran requested a stress test or that cardiology evaluation was scheduled are associated with the claims file. The appellant should be afforded an opportunity to submit or identify such records, and an attempt to locate any available VA records should be conducted. In a February 2007 medical opinion, a private physician, C.B., MD, opined that, had the veteran's carotid stenosis been discovered sooner, he could have been treated before an emergent carotid endarterectomy was performed in July 2004, the veteran would have had a better chance for survival. Dr. B. further opined that private records established that VA treatment of the veteran was not adequate. However, as the private medical statement addressed only the effect of the VA treatment, and did not discuss whether or how private treatment rendered during and subsequent to the VA treatment affected the cause of the veteran's death, the medical opinion of Dr. B. is incomplete. Further development of the medical evidence prior to appellate review is required. Appellate review of the claim cannot be completed until the records referenced by the physician who provided the private opinion are associated with the record. The appellant should be afforded the opportunity to identify or submit these records. Accordingly, the case is REMANDED for the following action: 1. Although the appellant has received notice of the criteria for benefits under 38 U.S.C.A. § 1151, the AMC/RO should provide updated notice, including notice regarding the criteria for establishing an effective date, if the claim is granted. See also 38 C.F.R. § 3.159. The notice should advise the appellant that both actual and proximate causation must be established. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered by VA resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). The veteran's additional disability or death must be shown to be proximately caused by carelessness, negligence, lack of proper skill, or other fault in the care rendered by VA. The RO should issue a SOC addressing the claim for benefits for the veteran's death under 38 U.S.C.A. § 1151. Manlincon, supra. The appellant should be notified that appeal to the Board on this issue has not been perfected, and the claim cannot be considered on appellate review without a specific substantive appeal. The appellant should be notified as to the date on which the period for a timely substantive appeal ends. 2. Complete records of the veteran's July 2004 hospitalization at the Medical Center of Plano, including preoperative, intraoperative, and post-operative records, should be sought, after obtaining authorization from the appellant. Any additional records available for the veteran's private medical treatment in 2003 and 2004, including from A.B.L., MD, J.R.E., MD, or other provider identified by the appellant, should be sought after obtaining authorization from the appellant. 3. The VA facilities at which the veteran was treated, and any additional VA facilities identified by the appellant, should be requested to provide a list of appointments scheduled for the veteran in 2003 and 2004. The VA facilities should be asked for any additional records which would disclose whether the veteran requested appointments, provided copies of records of private treatment records, or whether there are other records of communications from the veteran to VA prior to his death in July 2004 not yet associated with the claims file. 4. The appellant should be afforded the opportunity to provide any evidence in her possession or other evidence, such as statements from others, and should be afforded an opportunity to provide a statement from the veteran's representative regarding communications to VA from the veteran through the representative. 5. After all the evidence identified or submitted by the appellant has been requested and has been associated with the record, if available, a vascular surgery specialist should be asked to review the record, including VA treatment records, February 2004 private records of Dr. L., which recommended that the veteran undergo additional diagnostic examination, and the February 2007 private medical opinion provided by C.N. Bash, MD, including the opinion that proper examination by routine stethoscopic examination by VA would have led to surgical correction at a time when the veteran would have been at less risk of death than in July 2004. The reviewer should also be provided a complete copy of this REMAND. The reviewer should answer the following questions: (a) Is it as likely as not (a 50 percent likelihood, or greater) that VA failed to meet the standard of care for an individual of the veteran's age and medical history known to VA because VA failed to include analysis of the carotid arteries, at least by routine stethoscopic examination during treatment provided in February 2003, March 2003, April 2003, or May 2004? (b) If VA did not meet the standard of care for the veteran, is it at least as likely as not (a 50 percent likelihood, or greater) that VA's failure to diagnose the problem which led to the cause of the veteran's death, rather private care rendered before or after VA care, and rather than the veteran's actions following the February 2004 private evaluation, caused the veteran's death? (c) Is it at least as likely as not (a 50 percent likelihood, or greater) that VA's failure to diagnose atherosclerotic disease, including carotid abnormality, in February, March, or April 2003, or May 2004, was the actual cause of the veteran's death in July 2004 due to cerebral hemorrhage due to atherosclerotic heart disease? If there was an intercurrent actual cause of the veteran's death, please explain what the actual cause of the veteran's death was. (d) Is it at least as likely as not (a 50 percent likelihood or greater) that VA carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault, or an event not reasonably foreseeable, in February, March, or April 2003, or May 2004, was the proximate cause, that is, "the action or event that directly caused the veteran's death, as distinguished from a remote contributing cause." Please explain how the evidence of private clinical care in February 2004 and July 2004 as evidenced in the record affects the opinion you have offered in response to this questions. If there was a direct or actual cause of the veteran's death other than VA's failure to diagnose the disorder that caused the veteran's death, please explain what caused the veteran's death. The examiner must express an opinion as to whether it is "more likely than not" (likelihood greater than 50 percent), "at least as likely as not" (50%), or "less likely than not" (less than 50 percent likelihood) when describing likelihood. A complete rationale should be provided for any opinion or conclusion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. 6. After reviewing the evidence to assure that all development is complete and that the VA examination report is complete, the claim for service connection for the cause of the veteran's death should be readjudicated. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case (SSOC) which addresses actions taken since the issuance of the last SSOC. The appellant and her accredited representative should be given the opportunity to respond, and the claim should thereafter be returned to the Board, if in order. The claim for benefits for the veteran's death under 38 U.S.C.A. § 1151 may be considered on appeal only if the appellant perfects substantive appeal. 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). _________________________________________________ MARJORIE A. AUER 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).