Citation Nr: 1237234 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-19 756A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to July 1953. The Veteran died on March [redacted], 2005. The Appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in located in Chicago, Illinois (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. In September 2011, the Board denied the Appellant's claim of entitlement to accrued benefits, finding that the Veteran did not have a claim pending for VA benefits at the time of his death. There is no indication in the Veteran's claims file that the Appellant appealed the Board's September 2011 decision to the U.S. Court of Appeals for Veterans Claims. In August 2012, the Appellant submitted a statement wherein she asserted that the Veteran submitted a claim of entitlement to an increase in his disability benefits on February 25, 2005. The Appellant then described an interaction with a VA employee wherein an application was submitted. The Appellant also stated that she was attempting to have her VA pension restored and was pursuing "school benefits," medical coverage, and a VA housing loan, along with the "money [VA] denied [the Veteran] after his retirement." Based on this statement, it appears to the Board that the Appellant is, at the very least, submitting a claim to reopen the issue of entitlement to accrued benefits. As this claim has not been adjudicated by the RO, the Board does not have jurisdiction to consider it herein. The Board refers this claim to the RO for the appropriate action. Additionally, the Board is unable to discern what, if any, other claims the Appellant is attempting to submit via her August 2012 statement. As such, the RO should contact the Appellant to obtain clarification. REMAND In September 2011, the Board remanded the Appellant's above-captioned claim in order to obtain an opinion from a VA examiner as to whether a cause of the Veteran's death was etiologically related to his active duty service. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed in the September 2011 remand, the evidence of record included a certificate of death that demonstrated that the Veteran died on March [redacted], 2005. Septic shock was listed as the immediate cause of the Veteran's death. Further, conditions that gave rise to the immediate cause of the Veteran's death were listed as Parkinson's disease and hypertension, with hypertension being described at the underlying cause. Consequently, in the September 2011 remand, the Board directed the RO to arrange for the Veteran's claims file to be reviewed by a VA examiner in order to obtain an opinion as to "whether the contributory causes of the Veteran's death, Parkinson's disease and hypertension, were incurred in or due to the Veteran's active duty service." In September 2011, the Veteran's claims file and transcript of a Board hearing were reviewed by a VA examiner. The examiner then opined as follows: There were 2 incidents which were alluded to in the transcript that have bearing on this particular opinion. First, while in the military, the Veteran fell down a flight of steps in Alaska, sustained a concussion and head injury, and was subsequently taken to Okinawa for the insertion of a metal plate in the Veteran's head. The second issue occurred in Korea when some battery acid spilled on the head of the Veteran causing an area of alopecia or hair loss. The cause of death was listed as sepsis, Parkinson['s] disease, and hypertension. After reviewing the medical literature, in particular, the incidence of Parkinson['s] disease associated with a single yet significant head injury, such as this Veterans sustained, it is less likely as not, less than 50 [percent] probability, that Parkinson['s] disease as a contributory cause of this Veteran's death was related to the in-service incidents that this Veteran sustained as captioned above while in the military service. In support of this opinion, the examiner provided the following rationale: Two large population studies in Demark were done, which looked at severe head injury and the subsequent development of Parkinson['s] disease. These were authored by Rugbjerg and Spengenberg, one in the British Medical Journal and the other in the Journal of Parkinson-related disease in 2008 and 2009, respectively. Both of these large studies found no statistically significant relationship between the head injury and the subsequent developing of Parkinson['s] disease, which was listed as a contributing factor in the Veteran's death. These were large population studies in a country that has excellent medical records and good availability for tracing events. While it is fairly well known that multiple episodes of head trauma, such as in a boxer, have been associated with some development of Parkinson['s] disease, there is no evidence that [the Veteran] had multiple head injuries in the military of any significance, and furthermore, he went on to work for approximately a quarter of century at the United States Post Office without any mention of any subsequent symptoms. Therefore, this opinion is supported by the rationale and the data in the literature. After obtaining this opinion, the RO continued the denial of the Appellant's claim in a June 2012 supplemental statement of the case before remitting the issue to the Board for further appellate review. While the September 2011 VA examiner adequately addressed whether the Veteran's Parkinson's disease was incurred in or due to the Veteran's active duty service, no opinion was rendered as to whether the Veteran's hypertension was incurred in or due to his active duty service. As such, the September 2011 VA examiner's opinion is incomplete and, thus, inadequate for purposes of determining entitlement to service connection for the cause of the Veteran's death. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the September 2011 VA examiner's opinion is inadequate, the Board finds that a remand is required in order to obtain a supplemental opinion from the September 2011 VA examiner, or to obtain a new opinion from a different VA examiner. Additionally, by failing to ensure that the September 2011 VA examiner's opinion was adequate, the RO did not substantially comply with the September 2011 remand directives. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is also required in order for the RO to undertake corrective action. Accordingly, the case is remanded for the following action: 1. The RO must request that the September 2011 VA examiner provide a supplemental opinion. Specifically, the examiner must provide an opinion and thorough rationale as to whether the Veteran's hypertension was incurred in or due to his active duty service. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 2. If the RO is unable to obtain a supplemental opinion from the September 2011 VA examiner, the RO must then arrange for the evidence of record to be reviewed by another VA examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a thorough review of the evidence of record, the examiner must opine as to whether the contributory cause of the Veteran's death of hypertension was incurred in or due to the Veteran's active duty service. The examiner must specifically address the evidence of record pertaining to the battery acid burn and the brain concussion. A complete rationale for all opinions must be provided. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. The VA medical opinion report obtained must be reviewed to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures before remitting the Veteran's claims to the Board. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Appellant's claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Appellant. After the Appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).