Citation Nr: 1303334 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-28 473 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1942 to January 1946. He died in March 2010. The appellant is the Veteran's surviving spouse. The appellant's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the RO in Milwaukee, Wisconsin. The RO in Louisville, Kentucky has current jurisdiction over this matter. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Initially, the appellant should be advised of the bases for assigning effective dates and ratings. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice has not yet been provided. It also appears that relevant VA treatment records are missing from the claims file. In a May VA Form 21-4142, as well as a November 2010 VA Form 21-4138, the appellant requested VA to obtain the Veteran's treatment records from the VA Medical Center (VAMC) in Louisville, Kentucky. She requested that records from the Newburg Outpatient Treatment Center also be obtained. A review of the claims file, including the Virtual VA file, does not reveal records from the Newburg Outpatient Treatment Center specifically. VA is held to have constructive notice of the contents of VA records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." If the records are unavailable, VA must notify the appellant of the identity of the records, the efforts VA made to obtain the records, a description of any further action VA will take on the claim, and notice that the appellant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(i)-(iv) (2012). As such, the records from the Newburg Outpatient Treatment Center must be associated with the claims file for the Board's review prior to appellate adjudication. To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). Here, the coroner who prepared the Veteran's certificate of death listed the immediate cause of his death as pneumonia and the underlying causes of death as multi-organ failure and dementia. At the time of his death, the Veteran was service-connected for traumatic arthritis of the left knee, rated at 30 percent disabling; a recurrent epigastric ventral hernia, rated as 20 percent disabling; a residual scar from a right inguinal hernia repair, rated as 10 percent disabling; and a residual scar of epigastric hernia repair, rated as 10 percent disabling. In a VA treatment record entitled "Death Summary," prepared by the attending VA physician at the time of the Veteran's death, the "Principal Diagnosis/Cause of Death" was listed as pneumonia. "Secondary Diagnoses" were listed as hypertension, hypothyroidism, osteoarthritis, and hiatal hernia repair. In April 2011, a VA medical opinion was obtained. The examiner concluded that the Veteran's ventral hernia and right inguinal hernia residuals had no relationship to the bowel ischemia that caused his death. The examiner noted that the Veteran died from pneumonia. In the week preceding his death, he had been admitted for GI bleed and stomach/small bowel pneumatosis. This was due to stomach and small bowel ischemia causing infarction of the stomach and small bowel, and possibly perforation. Ischemia of the stomach and small bowel was due to vascular disease, which, in the Veteran's case, was caused by his very extensive history of smoking and hypertension. The appellant essentially argues that the service-connected right inguinal hernia and epigastric hernia contributed materially in producing the Veteran's demise. The medical evidence of record is conflicting as to the role that a hiatal hernia may have had in contributing to the Veteran's death. Specifically, the March 2010 Death Summary seems to indicate it was a contributing cause of death, while the Death Certificate and April 2011 VA examination report make no mention of it. If related, it is not clear whether any hiatal hernia was due to service or was caused or aggravated by service-connected disability. Moreover, the March 2010 Death Summary seems to indicate that osteoarthritis was a contributing cause of death. As noted, the Veteran's was service connected for arthritis of the left knee. Accordingly, this matter is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate steps to advise the appellant about the bases for assigning ratings and effective dates pursuant to the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should take all indicated action in order to obtain and associate with the claims file copies of all records of medical care rendered the Veteran at the VA Newburg Outpatient Treatment Center prior to his demise. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) in regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. The appellant also should be notified that she may submit other medical evidence or treatment records in support of her claim. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2012). _______________________________________________ STEPHEN L. WIKKINS 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) (2012).