Citation Nr: 1007583 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 03-22 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran had active service from February 1960 to June 1967. He is deceased, and the appellant claims benefits as his surviving spouse. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In January 2005, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge, at which the appellant testified. A transcript is on file. The Board denied the appealed claim in a May 2005 decision. The appellant appealed the case to the United States Court of Appeals for Veterans Claims, and in August 2006 the Court issued an Order vacating the Board's decision and remanding the case for further development. The Board in March 2007 remanded the case for development as ordered by the Court, and the case now returns to the Board for further review. Regrettably, the appeal must again be 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 Appeals Management Center (AMC) duly completed the Board's March 2007 remand instructions, in compliance with the Court's August 2006 Order. Requested private medical records were obtained, to the extent available, and a VA expert medical opinion was then obtained in September 2009. Notwithstanding the assertions by Veteran's authorized representative in a December 2009 Written Brief Presentation, the Board finds that the September 2009 opinion substantially complied with the Board's March 2007 remand instructions, to answer questions as to the etiology of disorders causative of the Veteran's death as required for the Board's adjudication of the appealed claim. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). However, the Board notes that, as pointed out by the September 2009 VA medical reviewer, the Veteran's March 2002 death certificate indicates that he died at Presbyterian Hospital in Philadelphia, Pennsylvania, and that he was an inpatient in the facility at the time (although for how long is not indicated). Hence, it is reasonable to infer that there is a hospital report associated with that terminal hospitalization, and that the medical reviewer viewed its absence from the evidentiary record as significant. The September 2009 VA examiner also noted the following facts: No report of CT scan of the chest [is] seen in available records[,] and such a report would have shed further light on any emphysema and fibrosis of the lungs, but - clearly - the claimant had obstructive airways disease based on and documented by pulmonary function study [sic] during his lifetime. The claimant's Death Certificate reads that causes of death were sepsis, pneumonia and pulmonary hypertension. Thus, there is a possibility that, if a CT scan was obtained during that terminal hospitalization, that scan would aid in answering questions regarding respiratory disorders which may have caused or contributed to the cause of death. The duration of that terminal hospitalization is unknown to the record, as is the degree to which that hospitalization record may contribute to answering questions of etiology of causes of the Veteran's death, including as possibly potentially related to service. Hence, an effort must be made to obtain those terminal hospitalization records, in furtherance of the appellant's claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(1) (2009). Accordingly, the case is REMANDED for the following action: 1. With the appellant's assistance and/or authorization, the RO (AMC) should obtain records of the Veteran's terminal hospitalization at Presbyterian Hospital, Philadelphia, Pennsylvania. Obtained records should include all records of inpatient treatment, examination, and testing, including in particular any CT scan or other imaging reports. All records and responses received should be associated with the claims file. 2. Thereafter, the RO (AMC) should review the obtained records. If these new records present evidence materially different from that already represented in the death certificate and the balance of the claims file, so as to potentially present a new basis or new evidence of a basis of a link between service and a cause or contribution to the Veteran's death, then the case should again be referred to the VA physician who provided the report and opinion based on review of the record in September 2009. That physician should be asked to review the newly obtained evidence in light of the balance of the record (including lay statements of record and their credibility), and to provide any amendments or changes to his opinions which may be warranted. The physician should be asked to provide a complete explanation for any opinions provided. 3. If the RO (AMC) determines that a further medical opinion is required but the September 2009 VA physician is unavailable to provide it, then a new medical opinion should be obtained to address the cause of the Veteran's death based on the entire record. The claims folder must be available to any reviewer. The medical expert should review the claims folder, including service medical records and post-service records, lay statements reflected in the record and their credibility, the record of VA examination for compensation purposes in January 1997, and the VA medical opinion obtained in September 2009. The examiner should also note the information on the death certificate concerning the cause of death and any contributing causes or medical conditions hastening the onset of death, as well as the obtained terminal hospitalization records. The reviewer should then answer the following: a. Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that a disorder which developed in service or is otherwise causally related to service caused the Veteran's death or significantly or materially contributed to cause death, or otherwise significantly or materially hastened the onset of death, or caused a condition which caused or significantly or materially contributed to death? In answering this question, the examiner must exclude primary alcoholism and associated alcohol abuse and any resulting medical conditions, because these are barred as a basis for service connection as willful misconduct, under 38 C.F.R. § 3.301. b. A rationale should be provided for the opinion given, and the factors upon which the opinion is based must be set forth in the report. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. d. If the examiner cannot answer the question posed without resorting to unsupported speculation, the examiner should so state. 4. Thereafter, the RO should readjudicate the remanded claim de novo. If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).