Citation Nr: 1116707 Decision Date: 04/29/11 Archive Date: 05/05/11 DOCKET NO. 10-02 367 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from July 1948 to July 1952. The Veteran died in September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Reno, Nevada VARO. In November 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is included in the claims 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 on her part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2002), and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the appellant in the development of the facts pertinent to the matter on appeal. See 38 C.F.R. § 3.159 (2010). To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A 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. 38 C.F.R. § 3.312(b). If a veteran's death is not determined to be service connected, a surviving spouse or children may still be entitled to benefits. Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse or children of a deceased veteran in the same manner as if the death were service connected, if the Veteran was either continuously rated totally disabled for ten or more years immediately preceding death or continuously rated totally disabled for at least five years from the date of the veteran's separation from service. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22(c). In January 2000, VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, to restrict this basis of award of DIC benefits to cases where the Veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. See 38 C.F.R. § 3.22. The regulation, as amended, specifically prohibits "hypothetical entitlement." Because the instant claim was filed after the effective date of this amended regulation, only actual, and not hypothetical, entitlement to a total disability rating for the prescribed intervals prior to death may be a basis of DIC claim under 38 U.S.C.A. § 1318. The Veteran's death certificate lists the cause of death as cardiopulmonary arrest, due to septic shock. At the time of his death his service connected disabilities included: PTSD, rated 100 percent; residuals of a left leg gunshot wound (GSW), rated 40 percent; and left leg thrombophlebitis, rated 10 percent. A total rating had been in place from September 4, 2003 (approximately four years). From January 7, 2004, the Veteran had also been entitled to special monthly compensation based on a need for aid and attendance. The appellant argues that the Veteran's service-connected left leg disabilities caused instability, which caused him to fall on July 7, 2007, fracturing his right hip, which required surgery and hospitalization; he was treated at several hospitals from that date until his death on September 14, 2007. It is also claimed that his service-connected disabilities contributed to cause his death. The appellant has identified a series of hospitals where the Veteran received continuous treatment between the time of his fall on July 7, 2007 and his death on September 14, 2007. His treatment following the fall began at Desert Springs Hospital to repair the fractured hip, after which he was transferred to Harmon Hospital for rehabilitation on July 20, 2007. He was re-admitted to Desert Springs hospital for treatment of hypoxemia before returning to Harmon Hospital for further care. On August 9, 2007, he was transferred to Fundamental Henderson rehabilitation facility for continued care. On August 28, 2007, he was transferred to Life Care Center, where he received treatment until September 11, 2007, on which date he was transferred to University Medical Center. He remained an inpatient at University Medical Center until his death on September 14, 2007. A review of the claims file found that the clinical records from Life Care Center and University Medical Center have not been secured for the record. Following a request for such records, University Medical Center responded that they require an authorization from the executor or administrator of the patient's estate in order to process a request for a deceased patient's records. The record does not show any follow-up. Terminal hospitalization clinical records may contain information pertinent as to whether service connected disability caused (or contributed to cause) the Veteran's death, and therefore are pertinent evidence that must be secured. The appellant is advised that when evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). She is further advised that ultimately it is her responsibility to ensure that the records sought are received. Furthermore, the record does not include a medical opinion as to whether the Veteran's service connected disabilities, PTSD, residuals of a GSW, and thrombophlebitis were factors in causing or contributed to cause his death. As that is a medical question, development for such opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the appellant to resubmit an authorization for VA to secure the complete clinical records of all treatment the Veteran received at Life Care Center and University Medical Center following his fall in July 2007, and prior to his death. She must be afforded the time provided by regulation, i.e., one year, to respond. The RO should secure for the record copies of all such records. If the appellant does not respond, this claim must be processed further under 38 C.F.R. § 3.158(a). 2. Following such development, the RO should forward the Veteran's claims file and a copy of 38 C.F.R. § 3.312 to an appropriate physician for review and an advisory medical opinion that responds to the following: (a) Based on the factual evidence of record, what was the most likely cause of the instability that led to the Veteran's July 7, 2007 fall, right hip fracture, and sepsis that ultimately resulted in his death? Specifically, is it at least as likely as not (a 50 % or better probability) that any of the Veteran's service-connected disabilities, i.e., PTSD, residuals of a left leg GSW, or left leg thrombophlebitis was a significant factor in the fall? (b) Based on the factual evidence of record, and in accordance with the provisions/guidelines of 38 C.F.R. § 3.312(c), is it at least as likely as not (a 50 percent of better probability) that a service connected disability was a contributory cause of the Veteran's death? The consulting physician must explain the rationale for all opinions. 3. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 or additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ George R. Senyk 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).