Citation Nr: 1123629 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 09-16 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The Veteran had active military service from May 1943 to February 1945. He died in February 2007; the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the appellant's claim for service connection for the cause of the Veteran's death. Regarding the procedural history of the claim, the Board notes that in February 2007, the appellant filed a claim for burial benefits for the Veteran's interment. In a March 2007 rating decision, the RO granted the appellant burial benefits; it also denied a claim for service connection for the cause of the Veteran's death, despite the fact that the appellant had not sought such benefits in her February 2007 claim. In April 2007, the appellant filed a claim specifically for entitlement to service connection for the cause of the Veteran's death. However, because the RO construed the appellant's initial February 2007 claim for burial benefits as an informal claim for service connection for the cause of the Veteran's death, the Board finds that the April 2007 submission by the appellant is a valid notice of disagreement as to the initial March 2007 denial of service connection for the cause of the Veteran's death. Thus, the Board finds that the rating decision on appeal is that dating from March 2007. In January 2011, the appellant was notified of the time and place of a Board hearing she had requested in connection with her appeal. See 38 C.F.R. § 20.704(b) (2010). However, she withdrew her hearing request in writing via a March 2011 statement to VA. Accordingly, the Board finds that the appellant's request for a hearing has been withdrawn. 38 C.F.R. § 20.704 (d) (2010). Please note that 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 The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the appellant's claim. The Board notes at the outset that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board acknowledges that review of the appellant's claims file reflects that the Veteran's treating VA physician stated in letters dated in February 2008 and August 2008 that he provided the Veteran with ongoing medical care at the Oklahoma City VA Medical Center (VAMC). Further, the Board acknowledges that the record reflects that the Veteran underwent treatment for a cerebral vascular accident in 1995 and a myocardial infarction, requiring three-vessel bypass surgery, in 2001. Records in the file specifically document treatment at the Oklahoma City VAMC; however, the most recent records date only to April 2006. It does not appear that the RO searched for any records for the period more recent than April 2006 from the Oklahoma City VAMC; no such records are present in the file, nor is there evidence that the RO has sought these more recent treatment records. Further, the board notes that treatment records of the Veteran's 1995 and 2001 hospitalizations are not of record, beyond a single letter dated in May 1995 from the Veteran's private treatment provider documenting the 1995 cerebral vascular accident The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the appellant's claim, on remand the agency of original jurisdiction (AOJ) must attempt to obtain the above-identified medical records, along with any other examination or treatment records from the Oklahoma City VAMC, and associate any records obtained with the claims file. If any records sought are determined to be unavailable, the appellant must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2010). Further, as the identified private medical records may have a bearing on the appellant's claim, on remand the AOJ must attempt to obtain any examination or treatment records from the Veteran's treating private physicians concerning the Veteran's 1995 cerebral vascular accident and 2001 myocardial infarction with resulting three-vessel bypass surgery, as well as from any other private or VA treatment provider identified by the appellant, and associate any records obtained with the claims file. If any records sought are determined to be unavailable, the appellant must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2010). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). A surviving spouse of a qualifying Veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310 (West 2002 & Supp. 2010); 38 C.F.R. § 3.312 (2010). To establish service connection for the cause of a Veteran's death, the evidence must show that a disability that was incurred in or aggravated by active service, or that was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). According to his death certificate, the Veteran died in February 2007. The death certificate lists acute hypoxemia as the immediate cause of death, with contributory causes identified as acute infectious colitis, status post cerebral vascular accident with right hemiparesis and selective aphasia in 1994 and acute myocardial infarction with three-vessel coronary artery bypass graft in 2001. At the time of his death, the Veteran was service connected for hearing loss, rated as 100 percent disabling; generalized anxiety disorder, rated as 50 percent disabling; malaria, rated as 10 percent disabling; degenerative joint disease of the left hand, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. The appellant contends that service connection for the cause of the Veteran's death should be granted because the generalized anxiety disorder, for which he was service connected, led to the hypoxemia that caused his death. She has also stated that she believes his generalized anxiety disorder caused or worsened his heart problems that led to his fatal hypoxemia. A review of the medical records reveals that the Veteran was service-connected for generalized anxiety disorder, which had been rated as 50 percent disabling since 1975. Records from the Veteran's private and VA treatment also confirm that the Veteran experienced a cerebral vascular accident in 1995 and a myocardial infarction requiring bypass surgery in 2001. Additionally, the Veteran's treating VA physician submitted statements in February 2008 and August 2008. In the February 2008 statement, the VA physician stated that he had treated the Veteran for a longstanding diagnosis of anxiety disorder and that he had also received treatment before his death for a "prolonged bout of persistent diarrhea." The physician further stated that while it was "not certain, it is possible" that the Veteran's anxiety caused the persistent diarrhea that contributed to his death. Similarly, in the August 2008 statement, the physician indicated that anxiety such as that experienced by the Veteran is a "well-known causal disease for stress and subsequently for ... heart disease." The physician further stated that it was at least as likely as not that the Veteran's 2001 myocardial infarction was related to his anxiety and that his heart problems "more likely than not contributed to his death from hypoxemia." Similarly, in a May 2009 letter, a private physician stated that he had reviewed the Veteran's medical records and the opinions of his treating VA physician and concluded that it is "very possible," based on the 2008 statements by the Veteran's treating VA doctor, that the Veteran's anxiety "was a chief contributing factor in his development of his heart problems" and that his heart disorder "contributed to his death from hypoxemia." The physicians did not, however, provide clear and complete rationales for these opinions. In the context of a claim for service connection for the cause of a Veteran's death, VA is required to obtain a medical opinion as to the relationship between the Veteran's death and service unless no reasonable possibility exists that such an opinion would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Further, once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In this case, the Board acknowledges that VA obtained medical opinions in April 2008 and April 2009. One VA examiner in April 2008 concluded that it is more likely than not that the Veteran's gastrointestinal complaints treated during his lifetime, including persistent diarrhea he experienced "in the period near the end of his life," were etiologically linked to his service-connected generalized anxiety disorder. However, a second VA examination conducted in April 2008 found that the acute infectious colitis listed on the Veteran's death certificate was not etiologically related to his generalized anxiety disorder, reasoning that infectious etiologies are not linked to anxiety disorder. In a second VA medical opinion issued in April 2009, a VA examiner reasoned that the hypoxemia that was the immediate cause of the Veteran's death was identified as being caused by acute infectious colitis of a week's duration, which disease process is not etiologically related to generalized anxiety disorder. The examiner further found that the Veteran's remote cerebral vascular accident and myocardial infarction "are not directly related to the Veteran's immediate cause of death." However, the April 2009 VA examiner failed to address in her opinion the contentions of the Veteran's treating VA physician in his August 2008 statement that the Veteran's heart problems, including his 2001 myocardial infarction-identified on the death certificate as a contributory cause of his death-were caused or worsened by his service-connected generalized anxiety disorder. Further, in regards to the VA and private physicians' letters discussed above, the Board notes in addition that the failure of a physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Court has further recognized that a mere statement of opinion, without more, does not provide an opportunity to explore the basis of the opinion. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In this case, although the Veteran's VA treatment provider and private physician have addressed the possibility of an etiological relationship between the Veteran's service-connected generalized anxiety disorder and the hypoxemia that caused his death, as well as between the Veteran's generalized anxiety disorder and the heart problems that led to the myocardial infarction identified as a contributing factor to his death, the physicians did not provide any rationale explaining these opinions. Thus, further development is required. See 38 C.F.R. § 4.2 (2010) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). To the extent that the conclusions reached by the April 2008 and April 2009 VA examiners fail to discuss the treating VA physician's statement that the Veteran's death was brought about in part by the Veteran's heart problems, which he suggested were caused or worsened by the Veteran's service-connected generalized anxiety disorder, the Board finds that the opinions are inadequate, and further development is required. In this regard, the Board notes that any medical opinion must be based on sufficient facts and data. See 38 C.F.R. § 4.2 (2010) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez, 22 Vet. App. at 30; Stefl, 21 Vet. App. at 124. Accordingly, remand is required. The Board thus finds that a supplemental VA medical opinion must be obtained in order to properly assess the appellant's claim. The opinion must address the etiology of the Veteran's myocardial infarction with three-vessel coronary artery bypass graft as well as whether his death was related in any way to his heart problems or his generalized anxiety disorder. In particular, the opinion must specifically discuss the August 2008 statement from the Veteran's treating VA physician linking his service-connected generalized anxiety disorder to his heart problems that, the physician opined, contributed to the hypoxemia that caused his death. The examiner must particularly address the February 2008 and August 2008 opinions from the Veteran's treating VA physician, as well as the May 2009 letter from a private physician, in the context of any negative opinion. Please note that 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. The AOJ must review the claims file and ensure that all notification (in particular, correspondence specifically addressing the VCAA notice and duty-to-assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met. This includes requesting that the appellant provide sufficient information, and if necessary authorization, to enable the AOJ to obtain any additional pertinent evidence not currently of record pertaining to the claim on appeal. 2. The agency of original jurisdiction (AOJ) must obtain from the Oklahoma City VAMC any available medical records pertaining to the Veteran's examination or treatment at any time from April 2006 to the Veteran's death in February 2007. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2010) regarding requesting records from Federal facilities. Any other sources of treatment records identified by the appellant should also be contacted. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the appellant must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2010). 3. The AOJ must request treatment records from the Veteran's private treatment providers pertaining to his 1995 cerebral vascular accident and 2001 myocardial infarction, as well as any other private or VA treatment providers identified by the appellant. The procedures set forth in 38 C.F.R. § 3.159(c) (2010) regarding requesting records must be followed. All records and/or responses received must be associated with the claims file. The AOJ must seek to obtain a release from the appellant as necessary. 4. After securing any additional records, the claims file must be forwarded to the VA physician who provided the April 2009 VA opinion, or a similarly qualified VA physician, for the issuance of a supplemental medical opinion. The physician should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the principal or a contributory cause of the Veteran's death is related to a service connected disability or began during his military service or otherwise developed as a result of disease or injury coincident with military service. The physician must specifically discuss whether it is at least as likely as not that the Veteran's generalized anxiety disorder caused or aggravated his heart problems, and if so, whether it is at least as likely as not that those heart problems contributed to his death. The physician must provide the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate. 5. After the requested opinion report has been completed, the report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it must be returned to the physician. 6. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ must re-adjudicate the claim on appeal in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the appellant and her representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is 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). _________________________________________________ STEVEN L. COHN 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).