Citation Nr: 0814789 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-17 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of death of the veteran. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, H.D. and W.D. ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from February 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant was afforded a March 2008 Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. On the Board's own motion, the appeal was advanced on the docket in April 2008. 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 appellant contends that the veteran's death in early 2005 resulted from service-connected post-traumatic stress disorder (PTSD). She has submitted competent medical opinion in support of the contention. Although a VA medical opinion was obtained in May 2005, it does not fully address the evidence of record, and the Board must therefore remand the claim for further development. The veteran's death certificate indicates the primary cause of death was cardiorespiratory arrest, due to hypostatic pneumonia/renal failure, due to metastatic prostate cancer. At the time of his death, the veteran was in receipt of service connection for PTSD rated at 50 percent disabling; bilateral hearing loss rated at 40 percent disabling, a right hip disorder rated at 10 percent disabling; the residuals of a shell fragment wound to the left thigh rated at 10 percent disabling; the residuals of a shell fragment wound to the right knee rated at 10 percent disabling; a healed scars of the left and right arm, both rated at zero percent disabling. The veteran was in receipt of a total disability evaluation based on individual unemployability, effective December 2001. In support of her claim, the appellant has submitted three medical opinions from the veteran's treating physicians. In substance they all relate that the veteran's PTSD could cause cardiovascular symptoms. Specifically, G. Kompothecras, D.C., opines that PTSD could, if not treated early, be a cause of cardiac problems and "a contributing factor to various forms of cancer." The appellant has also submitted an extract from a PTSD support group network website. In substance, it indicates that PTSD is linked to various bodily changes in the central nervous system, which may cause vulnerability to hypertension and atherosclerotic heart disease. Although a May 2005 VA opinion was obtained, it is not sufficient to address whether PTSD caused or contributed to the veteran's death. The examiner observed that he could not relate the veteran's atherosclerotic heart disease or his death to PTSD, and that atherosclerotic heart disease is "usually multifactorial in etiology." However, while it appears that the veteran had atherosclerotic heart disease, the death certificate indicates that the veteran died from cardiorespiratory arrest, which was caused by hypostatic pneumonia/renal failure, which in turn was due to metastatic prostate cancer - a disease not specifically mentioned by any of the medical examiners whose opinions are of record. Stated alternatively, a comprehensive medical opinion has not been obtained as to what if any causal or etiological relationship the veteran's PTSD may have had with metastatic prostate cancer; or hypostatic pneumonia/renal failure, or resulting cardiopulmonary arrest. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause; or be etiologically related. For a service- connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The RO/AMC must seek clarification from the examiner providing the May 2005 VA opinion. The examiner should review the claims file and state that he has done so. After completion of this review, the examiner must state findings as to whether PTSD (or any other service-connected disorder) caused or contributed substantially or materially to the veteran's death by cardiorespiratory arrest, due to hypostatic pneumonia/renal failure, due to metastatic prostate cancer. Further Veterans Claim Assistance Act (VCAA) notice is necessary. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court of Appeals for Veterans Claims (Court) held that in a claim for benefits for the cause of the veteran's death, VA's duty to notify under 38 U.S.C.A § 5103(a) must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or death; (2) an explanation of the evidence and information required to substantiate a Dependency and Indemnity Compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The appellant did not receive notice in accordance with Hupp. The claim will also be remanded for a corrective VCAA notice to address the new court precedent. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the examiner providing the May 2005 VA opinion. The claims file must be made available for the examiner to review, and the examiner must state that he reviewed the claims file. After review of the claims file, the examiner should note the veteran's medical history, including the development of prostate cancer, and the primary and secondary causes of death on the death certificate of record. The examiner must state whether PTSD, or any other service-connected disorder caused or contributed substantially or materially to the veteran's death. The examiner should provide a rationale for any opinion rendered. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why this is the case. 2. In accordance with Hupp, the RO/AMC will advise the appellant of: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. 3. After completion of the above, and any additional development of the evidence, the RO should review the record, to include all additional evidence, and readjudicate the claim. If any benefits sought remain denied, the appellant and her representative should be issued an appropriate supplemental statement of the case, and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ VITO A. CLEMENTI 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) (2006).