Citation Nr: 1115167 Decision Date: 04/18/11 Archive Date: 05/04/11 DOCKET NO. 05-08 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from March 1941 to June 1944. He died in November 2003. The Appellant is his widow (surviving spouse). She appealed to the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In support of her claim, the Appellant and her daughter testified at a videoconference hearing in February 2008 before the undersigned Veterans Law Judge of the Board. The Board subsequently, in April 2008, remanded the claim to the RO via the Appeals Management Center (AMC) for additional development and consideration. The Board was required by law to remand the claim again to the RO, via the AMC, in September 2010 because there had not been substantial compliance with a prior remand directive. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand). But see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (indicating there need only be "substantial", not "exact", compliance). Unfortunately, there still has not been substantial compliance with all of the Board's prior remand directives (just compliance with some). So, regrettably, the Board must again remand the claim to the RO via the AMC. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND As previously explained in the Board's September 2010 remand, if the terminal records from Doctor's Hospital were obtained as a result of that earlier remand, the file was to be again forwarded to the VA physician who previously had reviewed this case in May 2010 to have him provide additional, supplemental comment concerning the likelihood (very likely, as likely as not, or unlikely) that a service-connected disability - but especially the Veteran's duodenal ulcer disease, either caused or contributed substantially or materially to his death. The AMC has since, in February 2011, obtained these terminal hospitalization records, but the AMC did not then in turn solicit any additional comment from the VA physician who will now have the opportunity to consider these additional records and determine whether they change or affect his prior opinion. Therefore, before deciding this appeal, it is necessary to have this VA physician provide this further comment after considering this additional evidence. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (indicating that, while 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination for a dependency and indemnity compensation (DIC) claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim); see, too, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination or opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). And see Barr v. Nicholson, 21 Vet. App. 303 (2007) (indicating that, once VA undertakes the effort to provide an examination or obtain an opinion when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the claim is again REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Forward the file to the VA physician who previously reviewed this case in May 2010, if still available, to have him provide additional, supplemental comment concerning the likelihood (very likely, as likely as not, or unlikely) that a service-connected disability - but especially the Veteran's duodenal ulcer disease, either caused or contributed substantially or materially to his death. Have this VA physician again review the claims file for the pertinent medical and other history, including a complete copy of the Board's prior April 2008 and September 2010 remands, the amended death certificate, the December 2004 statement from Dr. R.M.R., this VA physician's prior comments in May 2010, and especially the terminal hospitalization records since obtained from Doctor's Hospital (which he did not previously have the opportunity to consider). When providing this additional comment, this VA physician must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the record. This VA physician should try as best possible provide this requested opinion. This is because a recent precedent case admonished the Board for relying on medical opinions that were unable to establish this required linkage, without resorting to mere speculation, as cause for denying claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As previously explained, in Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The term "as likely as not" does not mean merely within the realm of medical possibility, 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. If, for whatever reason, this VA physician is no longer available to provide this additional comment, then obtain this opinion from someone else equally qualified to make this important determination of causation. 2. After obtaining this additional medical comment, readjudicate the Appellant's cause-of-death claim in light of any additional evidence. If the claim is not granted to her satisfaction, send her and her representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Appellant has the right to submit additional evidence and argument concerning the claim 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. 2010). _________________________________________________ KEITH W. ALLEN 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) (2010).