Citation Nr: 1006591 Decision Date: 02/23/10 Archive Date: 03/02/10 DOCKET NO. 07-15 948 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and appellant's brother ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1943 to December 1944. He died in April 2005. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the RO in Cleveland, Ohio, on brokerage for the RO in Chicago, Illinois, which denied service connection for the cause of the Veteran's death. In August 2009, the appellant testified at a Board hearing before the undersigned, which was held at the Chicago RO. A transcript of the hearing has been associated with the file. 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 claims entitlement to service connection for the cause of the Veteran's death. For the reasons that follow, the Board finds that further development is warranted before this claim can be properly adjudicated. Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), VA has a duty to notify and assistant claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability, and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate or explain why an examination or opinion is not required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the RO obtained two VA medical opinions dated in March 2007 and March 2009 which found that the Veteran's service- connected disabilities did not cause or materially contribute to his death. However, neither opinion provided any kind of supporting rationale. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). Moreover, in the March 2007 opinion, the VA doctor did not address the RO's request to discuss whether the Veteran's service-connected pleural cavity injury might be related to pulmonary hypertension, which in turn may have lead to the myocardial infarction listed as the immediate cause of death on the Veteran's Certificate of Death. This issue is especially important in light of the fact that the examiner found in the March 2007 opinion that the Veteran's pulmonary hypertension and heart disease were related. As such, the Board finds that the opinions in this case are inadequate for the purpose of rendering a decision on the claim. See Barr, supra. Further, the Board finds that a VA opinion is necessary to make a decision on the claim. The Board notes that service connection for the cause of death may be established for a disability that was a contributory, rather than the principal, cause of death. See 38 C.F.R. § 3.312 (2009). Under VA law, a contributory cause of death is inherently one not related to the principal cause, but which contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to the production of death. See id. In all circumstances, it must be shown that there was a causal connection between the service- connected disability and the cause of death. See id. In this regard, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of the other disease or injury primarily causing death. Id. Here, the Veteran's Certificate of Death indicates that hydrocephalus was a significant condition contributing to the cause of death. During the Veteran's life, service- connection had been established for, among other disabilities, a skull defect with a tantalum plate in the left frontal lobe, rated as 50 percent disabling, and for posttraumatic encephalopathy, rated as 30 percent disabling. The Board finds that there is at least an indication that the Veteran's head injuries sustained in service may be related to the later development of hydrocephalus, which contributed to the cause of death. See Daves and McLendon, both supra. Accordingly, the Board finds that a VA opinion is warranted in this case. See id. On remand, the agency of original jurisdiction (AOJ) should obtain a VA opinion as to whether it is at least as likely as not that the Veteran's hydrocephalus was etiologically related to service-connected skull defect and encephalopathy. Moreover, the physician should render an opinion as to whether it is at least as likely as not that the Veteran's myocardial infarction was secondary to his service-connected pleural cavity injury. In this regard, the examiner should discuss whether it is at least as likely as not that the Veteran's pleural cavity injury lead to the development of pulmonary hypertension, and whether it is at least as likely as not that pulmonary hypertension resulted in the Veteran's myocardial infarction. The physician should also discuss the likelihood of any other relationship that might be identified between the Veteran's myocardial infarction and his service- connected disabilities. The examiner must give a complete rationale as to any opinion rendered. If the examiner does not provide a rationale, the AOJ should request one from the examiner and not return this case to the Board until such a rationale is obtained. See Nieves-Rodriguez. The Board also finds that a new notice letter should be sent to the appellant which is fully compliant with the VCAA. The United States Court of Appeals for Veterans Claims (Court) has held that in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, VCAA notice 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 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Here, the appellant was sent a May 2005 letter that did not provide a statement of the conditions for which the Veteran was service connected at the time of his death or an explanation of the evidence required to substantiate a claim based on a condition not yet service connected. Thus, the May 2005 letter did not satisfy all of the elements under Hupp. While the appellant has shown actual knowledge of the Veteran's service-connected conditions, it is not clear that she is aware of the requirements for substantiating a cause- of-death claim based on a condition that has not yet been service connected. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), revs' on other grounds; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, this claim must be remanded in order to provide the appellant with a letter complying with the notice requirements set forth in Hupp and all other notice requirements under the VCAA. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should provide the appellant all notification required by the VCAA with respect to this claim. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. Pursuant to Hupp, the notice must include (1) a statement of the conditions the Veteran was service-connected for 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. 2. The AOJ should obtain a medical opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's hydrocephalus, which was listed as a contributory cause of death on the Certificate of Death, was related to a disease or injury in service to include a service-connected skull defect with a tantalum plate in the left frontal lobe and/or his service-connected encephalopathy, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). The physician should also render an opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's myocardial infarction, listed as the primary cause of death on the Certificate of Death, was related to a disease or injury in service to include his service- connected pleural cavity injury, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). In this regard, the physician should discuss whether it is at least as likely as not that the Veteran's pleural cavity injury lead to the development of pulmonary hypertension, and whether it is at least as likely as not that pulmonary hypertension resulted in the Veteran's myocardial infarction. The physician should also discuss the likelihood of any other relationship that might be identified between the Veteran's myocardial infarction and his service- connected disabilities. 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 that conclusion as it is to find against it. The physician should provide a complete rationale for any opinion provided. If the physician does not provide a rationale, the AOJ should request one from the examiner and not return this case to the Board until such a rationale is obtained. If the physician is not able to provide an opinion without resorting to speculation, the physician must state the reasons why such an opinion cannot be rendered. A copy of this REMAND must be provided to the physician, and the physician must note in the opinion that the evidence in the claims file has been reviewed. 3. After the above development is completed as well as any other development that may be warranted, the AOJ should readjudicate the claim on the merits. If the benefits sought are not granted, the appellant and her representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2009). _________________________________________________ K. PARAKKAL 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) (2009).