Citation Nr: 1308149 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 12-11 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1953. The Veteran died in December 2010. The appellant is the Veteran's widow. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case is now under the jurisdiction of the Cleveland, Ohio RO. 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 In August 2012, the Board remanded the appellant's claim to obtain the VA treatment records from the Dayton, Ohio VA Medical Center (VAMC), obtain the terminal hospital records from the Lost Creek Care Center, and following receipt of the records, to request a supplemental medical opinion as to whether it is at least as likely as not that the principal or contributory cause of the Veteran's death was caused by or aggravated beyond its natural progress by the service-connected PTSD. The record shows that the Dayton, Ohio VA treatment records were obtained and associated with the claims file. Following the inclusion of the VA treatment records, a medical opinion was obtained in October 2012. The VA physician opined that it would be mere speculation to relate PTSD to carotid artery stenosis with needed endarterectomy, resulting complications and a resultant stroke. The physician stated that he was unaware of any reputable medical authority who would link the two conditions. Just because a stroke and PTSD involve the same body organ does not make them related. Following the October 2012 medical opinion, the terminal hospital records from the Lost Creek Care Center were associated with the claims file in November 2012. This is not in compliance with the Board's remand. The Board directed that the VA treatment records and Lost Creek Care Center records be associated with the claims file prior to obtaining a medical opinion. Here, the physician did not have the opportunity to review the full record, including the terminal hospital records from the Lost Creek Care Center, as requested by the August 2012 remand. Thus, the Board finds that the AMC has not substantially complied with the remand instructions. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the appellant, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Given the above, the Board must remand the case for a supplemental medical opinion to ensure compliance with the Board's August 2012 remand instructions and allow the physician the opportunity to review the entire evidence of record. Stegall, id. 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. The claims file must be forwarded to the VA physician who provided the August 2011 and October 2012 opinions. If the physician is not available, obtain a medical opinion from a similarly qualified VA physician. The physician is asked to note that the claims file was reviewed including records on Virtual VA and the Lost Creek Care Center records. The physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the principal or contributory cause of the Veteran's death was caused by or aggravated beyond its natural progress by his service-connected PTSD. The physician must provide the complete rationale for the opinion provided. If the physician cannot render a requested opinion without resorting to speculation, the physician must provide the reasoning for that determination. 2. After completing the above actions and any other development deemed necessary, readjudicate the claim. If any benefit sought is not granted, the appellant and her representative must be furnished a supplemental statement of the case (SSOC) and afforded an opportunity to respond. 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). _________________________________________________ L.M. BARNARD Acting 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).