Citation Nr: 1010193 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 06-09 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sandra E. Booth, Esq. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to October 1945. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying service connection for the cause of the Veteran's death. In December 2004, the appellant submitted a notice of disagreement and subsequently perfected her appeal in February 2006. In a December 2008 decision, the Board denied the matter on appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2009, the Court issued an order granting a joint motion to remand (JMR) the appeal to the Board. The appeal was returned to the Board for action consistent with the October 2009 JMR and Court order. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on her part. REMAND The appellant contends that the Veteran's death was the result of his service-connected bronchiectasis. Thus, she believes service connection for the cause of death is warranted. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of the appellant's claim of entitlement to service connection for the cause of the Veteran's death, consistent with the JMR and Court order. In order to establish service connection for the cause of a veteran's death, the medical evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2009). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a) (2009). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b) (2009). The appellant was afforded a VA opinion as to the cause of the Veteran's death in April 2006. The VA physician reviewed the Veteran's claims file, including the February 2004 death certificate and the November 2004 corrected death certificate. Although the November 2004 corrected death certificate listed the Veteran's service-connected bronchiectasis as an immediate cause of death, the VA physician found that the medical evidence did not reflect that the Veteran had active bronchiectasis or that it caused his death. Rather, she concluded that the cause of the Veteran's death was multi-organ failure, as a result of renal failure, hepatic failure, congestive heart failure, and chronic obstructive pulmonary disease (COPD). However, the VA physician failed to address any potential relationship between the Veteran's service-connected bronchiectasis and his COPD. Thus, the appellant must be afforded a new VA opinion to discuss this. Accordingly, the case is REMANDED for the following actions: 1. The RO should arrange for a VA pulmonologist to provide an opinion as to the cause of the Veteran's death. The examiner must review pertinent documents in the Veteran's claims file, including the February 2004 death certificate, the November 2004 corrected death certificate, and the March 2005 letter from Dr. Taylor regarding his amendments to the death certificate. This review of pertinent documents in the claims file must be noted in the examination report. The examiner should be asked to provide an opinion as to whether the Veteran's service-connected bronchiectasis was a principal or contributory cause of death, including any possible relationship to his COPD. The examiner must specifically address: A. Is bronchiectasis considered a form of COPD? B. Were there any chronic current residuals of the Veteran's service- connected bronchiectasis, either active or inactive? C. What, if any, part did the Veteran's service-connected bronchiectasis play in the development of the Veteran's COPD and his subsequent death? D. To the extent possible, discern the effects of any of the Veteran's service- connected and non service-connected disabilities on any diagnosed lung disorders. 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the action taken in the paragraph above, the claim of entitlement to service connection for the cause of the Veteran's death should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the appellant and her representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2009).