Citation Nr: 1307296 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 06-37 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from March 1944 to April 1946. The Veteran died on March [redacted], 2005. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims for Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1310 (service connection for cause of death) and § 1318 (based upon total disability). In addition, in an October 2007 rating decision, the RO in Cheyenne, Wyoming, denied DIC based upon 38 U.S.C.A. § 1151. In May 2010, the Board issued a decision denying entitlement to DIC under §§ 1318 and 1151. The appellant did not appeal that decision. Consequently, the only issue remaining before the Board is DIC under 38 U.S.C.A. § 1310, in other words, service connection for the cause of the Veteran's death (the issue listed on the title page). The appellant appeared and testified at a Board hearing held at the RO before a Veterans Law Judge in April 2008. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Board notes that the Veterans Law Judge that held that hearing is no longer an employee of the Board. The appellant was notified of this by letter and offered the opportunity for another hearing. In March 2010, the appellant responded she did not desire another hearing. Consequently, the Board's obligation to provide the appellant with a hearing has been met. The Board notes that jurisdiction of the appellant's claim was initially with the RO in Phoenix, Arizona, but was transferred in October 2005 to the RO in Cheyenne, Wyoming, per her representative's request due to the appellant relocating to that state. At the time of the last remand in July 2011, however, the RO of original jurisdiction was listed as Atlanta, Georgia. There is no reason in either the claims file or VA's computerized records system to explain why original jurisdiction of the Veteran's appeal would have been switched from the Cheyenne RO to the Atlanta RO. The Board can only conclude that this change was made in error. The evidence of record demonstrates that the appellant has remained living in Wyoming since jurisdiction was transferred there in 2005. Consequently, the Board has listed the RO of original jurisdiction on the title page as Cheyenne, Wyoming, rather than the Atlanta RO as indicated in the Board's prior remand. Further, the Board notes that the appellant submitted a letter to the AMC in October 2012 relating to her representation by the Disabled American Veterans (DAV). She seemed to be of the impression that DAV was not being allowed to represent her any longer. It is unclear to the Board exactly what information the appellant was referring to; however, it is clear from the record that the DAV has continued to represent the appellant in her appeal. The Board notes that there has been no revocation by DAV of its representation of the appellant. Consequently, it appears that the appellant was unfortunately given some misinformation about her representation by DAV. As the DAV continues to have an active VA 21-22 appointing it as the appellant's representative of record, the Board has listed it as her representative at this time. 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 REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that remand is warranted to ensure that its prior remand instructions have been complied with. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant's appeal was initially before the Board in April 2009, at which time it was remanded to the AMC for additional notice to be provided the appellant pursuant to Hupp v. Nicholson, 21 Vet. App. 342 (2007). After providing appropriate notice, the appellant's appeal was returned to the Board. In April 2010, the Board issued a decision denying the appellant's claims for DIC pursuant to 38 U.S.C.A. §§ 1318 and 1151. The issue of service connection for the cause of the Veteran's death (DIC pursuant to 38 U.S.C.A. § 1310) was remanded to the AMC for additional development, specifically a medical opinion with regard to whether the Veteran's service-connected shell fragment wounds of the left lower extremity contributed to the cause of the Veteran's death. The requested medical opinion was received in June 2010; however, the Board found the medical opinion to be inadequate and sought a VHA medical opinion that was obtained in March 2011. In July 2011, the Board again remanded the appellant's claim to the AMC for additional development, specifically to obtain outstanding documentary evidence and a medical opinion on the second theory of entitlement raised by the appellant and her representative (i.e., that the Veteran's service-connected dysthymic disorder contributed to the Veteran's death by causing the Veteran to abuse alcohol and tobacco products). The AMC requested records from the Social Security Administration which responded that the Veteran's file had been destroyed due to time. Thus, these records are no longer attainable and no further efforts are needed to obtain them. Furthermore, the AMC requested records from the Vet Center in Tucson, Arizona, which responded that it had no treatment records for the Veteran. Instead it advised that the Veteran was seen by a private mental health care provider on a fee contract basis from February 1999 through April 2000. The Board notes that this private provider's treatment records were obtained and associated with the claims file. Consequently, the Board finds that no further efforts are necessary to obtain any records from either the Vet Center in Tucson, Arizona, or from this private mental health care provider. Next the Board notes that VA treatment records from the VA Medical Center in Phoenix, Arizona, were requested in September 2011 for the period of 1979 to 1999. A February 2012 Report of General Information indicates that a telephone call placed to the Phoenix VA Medical Center resulted in the AMC being informed that the Veteran's treatment records were transferred to the Tucson VA Medical Center in 1998 and they should be contacted for the records. Consequently, the AMC placed a request to the Tucson VA Medical Center that same month for the Veteran's treatment records dating from 1979 to 2005. The AMC noted in the request that it originally contacted the Phoenix VA Medical Center and they indicated that the Veteran's records were transferred to its facility in 1998. The AMC requested that it be notified in writing if the records are destroyed or unavailable. The AMC received no response from the Tucson VA Medical Center. In April 2012, it appears that the AMC printed VA treatment records for the Veteran for the period of March 1999 to March 2005 from VA's computerized medical records. On that same date, the AMC sent a second request to the Tucson VA Medical Center requesting the Veteran's treatment records from 1979 to 1999. It again requested that, if records are unavailable, it be notified in writing of this. No response was received from the Tucson VA Medical Center. The Board notes that VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, VA's duty to assist in obtaining Federal records set forth in 38 C.F.R. § 3.159(c)(2) requires that VA make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA may end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Furthermore if VA concludes that it is reasonably certain that records do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact and explaining the steps taken to obtain such records. 38 C.F.R. § 3.159(e)(1). The Board notes that VA has established a procedure in which it issues a memorandum of formal finding of unavailability when it is unable to obtain records that have been identified and then provides such notice in writing to the claimant. In the present case, despite requesting the Tucson VA Medical Center provide a written reply if the records are either destroyed or otherwise unavailable, no response was received from the Tucson VA Medical Center in response to either of the AMC's request for the Veteran's treatment records from 1979 to 1999. Furthermore, the AMC did not issue a formal finding of unavailability of these records nor did it notify the appellant that these records were being found to be unavailable and that further efforts to seek them would be futile. Consequently, the Board finds that remand is warranted for another attempt to obtain the Veteran's treatment records from 1979 to 1999 from the Tucson VA Medical Center. A negative reply should be provided by the Tucson VA Medical Center if these records are not available. If the AMC is unable to obtain these records, then the notice procedures set forth in 38 C.F.R. § 3.159(e)(1) (i.e., VA's procedures of issuing a formal finding of unavailability with notice to the claimant) should be followed advising the appellant that these records are not attainable and that further efforts would be futile. In addition, the Board notes that it requested that the AMC obtain the Veteran's treatment records from the VA Medical Center in Cheyenne, Wyoming, for the period of 1948 to 1950, which request was made in September 2011. The Board notes that the Cheyenne VA Medical Center responded and submitted treatment records from 1953. These treatment records, however, are clearly not for this Veteran. Rather the treatment records provided are for a veteran with a name very similar to the Veteran's in the present case except for that their middle initials are different and the last names are spelled slightly different. Furthermore, reportedly the treatment records for the Veteran are supposed to show substance abuse treatment and the records obtained are for treatment of a compleely different medical condition. Consequently, on remand, the AMC should go back to the Cheyenne VA Medical Center and ask it to again check its records for treatment for this Veteran for substance abuse treatment from 1948 to 1950. Finally, the Board notes that the medical opinion obtained in September 2011 was not obtained after the AMC conducted all other development as instructed in the Board's July 2011 remand. Furthermore, the Board finds that the medical opinion provided is not adequate as opinion appears to be contradictory. The VA physician stated that there is no evidence of causality between the Veteran's service-connected dysthymic disorder and his alcohol or tobacco abuse. He opined that it is not likely that the Veteran's dysthymic disorder contributed to his alcohol or tobacco abuse. However, he then concludes as follows: "Therefore, since there is no record of abuse related to his dysthymic disorder in the chart, it rendered the Veteran less capable of resisting the effects of the fatal congestive heart failure and cardiomyopathy." This last statement is contradictory within itself as well as with the remainder of the physician's statements. Thus, on remand, the claims file should be returned to this physician after all additional development has been conducted, and he should be asked to clarify his previous medical opinion and to provide a complete and understandable explanation for the reasons for the opinion(s) expressed. Accordingly, the case is REMANDED 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. Contact the VA Medical Center in Tucson, Arizona, and ask it to provide the Veteran's treatment records from 1979 to 1999, which were transferred to it from the VA Medical Center in Phoenix, Arizona in 1998. A negative reply must be provided if any records are destroyed or otherwise not available. 2. Contact the VA Medical Center in Cheyenne, Wyoming, and advise it that the previous records it provided in September 2011 were not related to the Veteran in the present appeal but were for a different veteran. Request that it provide any substance abuse treatment records relating to the Veteran from 1948 to 1950. A negative reply must be provided if any records are destroyed or otherwise not available. 3. If any requested records are unattainable and it is determined that further efforts to obtain those records would be futile, then the procedures set forth in 38 C.F.R. § 3.159(e)(1) (i.e., the procedures for issuing a formal finding of unavailability) should be followed and the appellant and her representative provided appropriate notice. 4. After all attainable VA treatment records have been associated with the claims file, then return the claims file to the VA physician who provided the September 2011 medical opinion on the cause of the Veteran's death. He should be reminded that he was previously asked, after review of the record, whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's service-connected psychiatric disorder (diagnosed as dysthymic disorder) either caused or aggravated his alcohol abuse and/or tobacco use disorder; and, if so, whether it is at least as likely as not that the Veteran's psychiatric disorder and any related alcohol abuse and/or tobacco use disorder caused or aggravated his congestive heart failure and congestive cardiomyopathy, which caused his death. The VA physician should be advised that the Board has found his September 2011 opinion to be contradictory and, therefore, inadequate for rating purposes; therefore, the Board is requesting that he revisit this medical opinion. The VA physician should be asked to submit an addendum report in which he clarifies his previously provided medical opinion(s) and provides a complete and understandable explanation for the reasons for the opinion(s) rendered. 5. Thereafter, the appellant's claim should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the appellant and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 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). _________________________________________________ MICHAEL MARTIN 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).