Citation Nr: 1127210	
Decision Date: 07/21/11    Archive Date: 07/29/11

DOCKET NO.  10-12 744	)	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 the Veteran's death.  


ATTORNEY FOR THE BOARD

C. R. Olson, Counsel


INTRODUCTION

The Veteran had active service from August 1978 to December 1987.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In April 2009, the RO granted entitlement to dependency and indemnity compensation) (DIC) under the provisions of 38 U.S.C.A. § 1318.  Basic eligibility to Dependents' Educational Assistance was also established.  The July 2009 RO decision on appeal denied service connection for the cause of the Veteran's death.  Considering the grant of DIC and educational benefits, the July 2009 denial of service connection for the cause of the Veteran's death mainly impacts burial benefits under 38 U.S.C.A. § 2307 (West 2002).  

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 reports that the Veteran received treatment at VA facilities.  The July 2009 RO decision asserted that the Virtual VA electronic claims file had been reviewed.  However, this evidence was not mentioned in the January 2010 statement of the case (SOC).  The evidence listed in the SOC was limited to the service treatment records, the claim form, and the death certificate.  By law, the SOC must contain a summary of the evidence in the case pertinent to the issue or issues.  38 U.S.C.A. § 7105(d)(1)(A) (West 2002).  The regulation restates the law requiring a summary of the evidence in the case relating to the issue.  38 C.F.R. § 19.29 (2010).  Here, the VA records apparently contained all the information leading up to the Veteran's death, including diagnoses.  Because the RO actually considered this information (according to the July 2009 decision) but failed to list it in the SOC, the SOC is legally deficient.  The cure is a supplemental statement of the case listing all evidence considered.  

The appellant, the widow of the Veteran, contends that the acetaminophen he took for his service-connected headaches contributed to his liver damage and death.  As a lay witness, she is competent to report his headaches and use of medication.  Whether these contributed to cause his death is a medical question that requires a medical opinion.   

Accordingly, the case is REMANDED for the following action:

1.  A complete copy of the Veteran's VA medical records should be printed and associated with the claims file.  

2.  After the above action has been completed, the claims file should be referred for a medical opinion.  A physician should express an opinion as to whether it is at least as likely as not that acetaminophen used to control the Veteran's headaches contributed to cause his death.  

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 causation as it is to find against causation.  

In determining whether the service-connected disability contributed to cause death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  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 C.F.R. § 3.312(c) (2010).  

3.  Thereafter, the agency of original jurisdiction (AOJ) should readjudicate this claim in light of any evidence added to the record.  If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC) listing all evidence considered.  An appropriate period of time should be allowed for response.

Subsequently, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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. 2010).



_________________________________________________
J. A. MARKEY
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).