Citation Nr: 1305019 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-34 190 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death, for purposes of Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from March 1965 to February 1969. The Veteran died in April 2007, and the appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision by the RO which denied, in part, the benefits sought on appeal. A hearing at the RO before the undersigned was held in October 2011. The Board remanded the appeal for additional development in June 2011 and April 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the appellant's appeal. The appellant contends that the Veteran suffered from severe dementia which was related to his service-connected PTSD, and that it contributed substantially to hasten is demise in April 2007. To establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to 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 (emphasis added). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (2012). In this case, the Board remanded the appeal in April 2012, for a VA medical opinion as to whether the Veteran's service-connected post traumatic stress disorder (PTSD) contributed substantially or materially to cause his death. Although the claims file was reviewed by a VA physician in June 2012, the examiner's opinion was conclusory in nature and did not include any substantive analysis of the facts or a rational explanation for the conclusion reached. As the examiner did not address the specific concerns raised in the April 2012 remand, the Board finds that the opinion was inadequate and that further development is necessary. As noted in the April 2012 remand, the Veteran's certificate of death listed the immediate cause of death as dementia with episodic psychotic behavior and hypothyroidism. However, an April 2007 private autopsy report showed that the Veteran died as a result of acute bilateral pneumonia. A May 2007 letter to the appellant from the physician who conducted the autopsy offered assistance in amending the Veteran's certificate of death to reflect the findings of the autopsy. In a letter received in December 2007, the private physician who treated the Veteran for several years prior to his demise reported that the cause of death was due to bilateral pneumonia and a possible staph infection. The Board recognizes that while it may be difficult to render a definitive opinion in this matter, the examiner must consider all of the evidence of record, including the Veteran's terminal VA hospital records, the April 2007 autopsy report and findings on the Certificate of Death, and formulate an opinion as to the degree of likelihood that his service-connected PTSD contributed substantially or materially to cause his death (i.e., that his PTSD hastened or rendered him less capable of resisting the conditions that caused his death). If the examiner is still unable to render an opinion without resorting to speculation, he or she should provide an explanation as to why that is so. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because the remand instructions were not complied with, the Board is required to remand the appeal for additional development. Id; see also 38 C.F.R. § 19.9 (2009). Accordingly, the case is REMANDED for the following action: 1. The claims file and a copy of this remand should be forwarded to the VA physician who reviewed the record in June 2012, for review and an opinion as to whether it is at least as likely as not that the Veteran's service-connected PTSD contributed significantly or materially to cause his death. In particular, the examiner should review the terminal medical records (VA hospital records from March to April 2007) and comment on the findings of the April 2007 autopsy report and the immediate causes of death listed on the certificate of death. If this examiner is not available, the claims file should be sent to another appropriate examiner. The claims folder must be made available to and reviewed by the examiner, and the report should indicate whether such review occurred. A fully articulated medical rationale for any opinions expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. It would be helpful if the examiner included an analysis of the relevant facts and medical principals concerning the Veteran's dementia, pneumonia and PTSD as it relates to his demise. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the examiner for completion of the opinion), or state whether the inability to provide the opinion is based on the limits of medical knowledge. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: In determining whether the service-connected disability contributed to 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. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (2012). 2. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed and provided an adequate rational for any conclusions reached. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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).