Citation Nr: 1307490 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-39 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from November 1942 to February 1946. He died in November 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appellant testified before a Veterans Law Judge in April 2011. However, in January 2012, the appellant was advised that the Veterans Law Judge who had conducted her hearing in April 2011 was no longer employed by the Board. The appellant was provided the option to testify at another hearing before a Veterans Law Judge who would adjudicate the appeal. In a response received in February 2012, the appellant indicated that she wanted to appear at another hearing before a Veterans Law Judge via a video-conference hearing from the local RO. Thereafter, the appellant and her daughter testified by video-conference before the undersigned Veterans Law Judge in November 2012. At the hearing the appellant submitted additional evidence with a waiver of initial RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. A review of the Virtual VA paperless claims processing system reveals that the only additional document pertinent to the present appeal is a transcript of the November 2012 Board hearing. At the appellant's hearing she brought a claim of clear and unmistakable error (CUE) on the January 2007 rating decision that awarded separate 60 percent ratings for the Veteran's varicose veins with chronic phlebitis and stasis dermatitis of the right and left lower extremities, effective February 27, 2006. In this regard, prior to the January 2007 rating decision, the Veteran's two separate varicose vein disabilities were evaluated as a single disability with a 50 percent disability rating. The appellant alleges that the January 2007 rating decision contained in CUE in failing to assign separate ratings for such disabilities prior to February 27, 2006. Thus, the issue of whether there is CUE in the assignment of one disability rating instead of two separate service-connected disabilities prior to February 27, 2006, has been raised by the record, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). According to the Veteran's death certificate, he passed away in November 2008. The original death certificate indicates that the cause of death was natural acute renal failure. An expanded death certificate reflects that the primary cause of death was acute renal failure, coronary artery disease, type 2 diabetes mellitus, and hypertension. At the time of the Veteran's death, he was service-connected for varicose veins with chronic phlebitis and stasis dermatitis of the right lower extremity, evaluated as 60 percent disabling; varicose veins with chronic phlebitis and stasis dermatitis of the left lower extremity, evaluated as 60 percent disabling; and bursitis of the left knee, evaluated as 10 percent disabling. The Board notes that prior to February 2006, the Veteran's bilateral varicose vein disabilities were evaluated as a single disability with a 50 percent disability rating. In October 2011, the issue on appeal was sent for a Veterans Health Administration (VHA) medical opinion to address whether the Veteran's service-connected service-connected for varicose veins with chronic phlebitis and stasis dermatitis of the right and left lower extremities were contributory causes of the Veteran's death. That is, whether they contributed substantially to or materially caused the Veteran's death, combined to cause his death, or aided or lent assistance to the production of his death. In November 2011, a VHA opinion was provided. The VHA examiner noted that, during World War II, the Veteran suffered shrapnel wounds of his left leg that apparently was the cause of his varicose veins with chronic phlebitis and stasis dermatitis. It was noted that the Veteran subsequently developed Type II diabetes mellitus, hypertension, obesity, congestive heart failure, coronary artery disease, atrial fibrillation, sleep apnea, hyperlipidemia, stage 3 chronic kidney disease, and diabetes retinopathy. The VHA examiner stated that it was his opinion that the main cause of the Veteran's chronic kidney disease was diabetes; he also stated that hypertension and obesity can be considered contributory factors in the development of his chronic kidney disease. However, he found that the Veteran's venous stasis was not involved in the development of his chronic kidney disease. He stated that the cause of the Veteran's death was acute renal failure and that the Veteran died because of a combination of acute renal failure and congestive heart failure that made the management very difficult and resulted in the Veteran's death. He stated that he considered the varicose veins with chronic phlebitis and stasis dermatitis were not involved in the Veteran's death; instead, he would rather consider that the Veteran's chronic kidney disease and previous heart conditions as contributory to the development of acute renal failure and ultimately death. The diabetes mellitus, obesity, and hypertension can be blamed for the development of chronic kidney disease. At her November 2012 Board hearing, the appellant testified that, as the result of the Veteran's in-service shrapnel injury to the left leg, he developed chronic cellulitis, which was complicated by his edema and diabetes mellitus. She testified that because of the Veteran's circulation problems in his legs, he was always fighting infection and the issues with his legs complicated taking care of his other physical needs, which ultimately led to the Veteran's death. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. §3.312(c)(3). Thus, the Board finds that the Veteran's claims file should be sent for a VA medical opinion as to whether the Veteran's service-connected varicose veins with chronic phlebitis and stasis dermatitis of the right and left lower extremities and bursitis of the left knee resulted in debilitating effects and general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other diseases primarily causing death. Also, while on remand, the appellant should be given another opportunity to identify any outstanding treatment records referable to the Veteran's medical care prior to his death. In this regard, at her hearing, she identified treatment from Dr. Srikanth and Marion General Hospital, Indianapolis Methodist Center, and the VA Medical Center in Indianapolis, Indiana. The Board also notes that it appears that the Veteran was also treated at the Marion, Indiana, VA facility. While some records from Dr. Srikanth, Marion General Hospital, and the Marion VA facility are contained in the claims file, the appellant should be provided another opportunity to identify any outstanding private or VA treatment records. Thereafter, any identified records should be obtained for consideration in the appellant's appeal. Finally, as noted in the Introduction, the issue of CUE has been referred for appropriate action. Since a finding of CUE could impact the appellant's claim for DIC benefits under 38 U.S.C.A. § 1318 now on appeal, the two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, after the AOJ has adjudicated the appellant's claim for CUE, it should then readjudicate the appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. Accordingly, the case is REMANDED for the following action: 1. The appellant should be given an opportunity to identify any VA or non-VA healthcare provider who treated the Veteran prior to his death, to include Dr. Srikanth and Marion General Hospital, and Indianapolis Methodist Hospital. After securing any necessary authorization from her, obtain all identified treatment records that are not already of record, to specifically include outstanding treatment records from the Indianapolis and Marion VA facilities. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran's claims file should be sent to the appropriate VA examiner for a medical opinion. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should note the Veteran's original and expanded death certificates reflecting primary causes of death as acute renal failure, coronary artery disease, type 2 diabetes mellitus, and hypertension. After reviewing the record, the VA examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities resulted in debilitating effects and general impairment of health to an extent that rendered him materially less capable of resisting the effects of other diseases primarily causing his death. In offering any opinion, the examiner must consider appellant's statements and the November 2011 VHA medical opinion. The rationale for any opinion offered should be provided. 3. Prior to readjudicating the claims on appeal, the AOJ must adjudicate the referred claim of whether there is CUE in the January 2007 rating decision that assigned two separate disability ratings for the Veteran's service-connected varicose veins with chronic phlebitis and stasis dermatitis of the right and left lower extremities effective February 27, 2006. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claims should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ A. JAEGER 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).