Citation Nr: 1237208 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-25 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and R.B. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to April 1983 in addition to three years, four months, and six days of prior active service. He died in January 2009. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A videoconference hearing was held in March 2011 before the undersigned Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In June 2011, the Board denied the claim of entitlement to service connection for the cause of the Veteran's death. The claimant appealed to the United States Court of Appeals for Veterans Claims (the Court). In a March 2012, the Court granted a Joint Motion for Remand (Joint Motion) and the matter has been remanded to the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the March 2012 Joint Motion, the parties determined that the Board did not adequately support its finding that review of medical treatise evidence regarding whether long-term bladder infections being a risk factor for squamous cell bladder cancer but not transitional cell bladder cancer was dispositive of the appropriate probative value to be awarded to the medical opinions of record. The parties also agreed that Dr. L.'s opinion was sufficient to raise the issue of whether the Veteran's service-connected disabilities aided or lent assistance to the development of his fatal bladder cancer and that the Board should address that matter as well as whether the April 2010 VA examiner's opinion was adequate in light of the fact that it, similarly, does not address whether the Veteran's service-connected disabilities could have aided or lent assistance to the development of his fatal bladder cancer. The parties also determined that although the Board correctly noted that the Veteran's cancer was identified as transitional cell bladder cancer, the Board did not explain why the malignancies to which Dr. L. referred to or squamous cell cancer, as referenced in the medical treatise evidence, could not also have existed. In light of the above, a medical opinion is necessary. The Veteran's cancer was diagnosed by VA in 2003. The RO obtained VA treatment records up to August 2004 and since September 2007. The RO should obtain all treatment records from the Togus VA Medical Center and the Aroostook County (Caribou) VA community based outpatient clinic from August 2004 to September 2007. Accordingly, the case is REMANDED for the following actions: 1. The RO must attempt to obtain all treatment records from the Togus VA Medical Center and the Aroostook County (Caribou) VA community based outpatient clinic from August 2004 to September 2007. Any obtained records should be associated with the Veteran's claims file. To the extent records are sought but not obtained, the claims folder should contain documentation of the attempts undertaken. 2. Thereafter, the RO must forward the Veteran's claims file to a VA physician who is a specialist in oncology for a medical opinion to determine the etiology of the cause of the Veteran's death. The claims folder must be made available to the physician. The reviewing physician should opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran had squamous cell cancer or other malignancy of the bladder in addition to the diagnosed transitional cell bladder cancer. The reviewing physician must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran's prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections caused or aggravated (permanently worsened) his fatal bladder cancer; that the prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections contributed substantially or materially to his death; that the prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections combined to cause his death; that the prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections aided or lent assistance to the production of his death; or that the prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections rendered him materially less capable of resisting the effects of the fatal bladder cancer. The reviewing physician should be advised that it is not sufficient to show that the prostatitis, recurrent bladder infections, and/or recurrent urinary tract infections casually shared in producing death, but rather it must be shown that there was a causal connection. A complete rationale for any opinion offered must be provided. 3. After the development requested, the RO should review the medical opinion to ensure that it is in complete compliance with the directives of this REMAND. If the medical opinion is deficient in any manner, the RO must implement corrective procedures at once 4. Thereafter, the RO must readjudicate the issue on appeal. If the benefit is not granted, the appellant should be furnished with a supplemental statement of the case, with a copy to her counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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. 2011). _________________________________________________ MICHAEL D. LYON 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) (2011).