Citation Nr: 1308329 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-16 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from September 1973 to September 1976 and from August 1980 to August 1992. He died in March 2008; the appellant claims benefits as his surviving spouse. The appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to the benefits sought on appeal. The appellant appealed this decision to the Board. In January 2011, the Board remanded the case for additional development. In an October 2011 decision, the Board denied the claim on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and by a July 2012 Order, the Court approved a Joint Motion for Remand (Joint Motion), thereby vacating the Board's October 2011 decision and remanded the case for development consistent with the Joint Motion. 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 Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death, e.g., when a causal connection is shown. 38 C.F.R. § 3.312(c). In the Joint Motion approved by the Court in July 2012, the parties agreed that development of the evidence was inadequate prior to the Board's October 2011 decision denying service connection for the cause of the Veteran's death. Specifically, in the Joint Motion, the parties recognized that a VA examiner in April 2011 addressed the question whether there was a contribution to the cause of the Veteran's death by morphine prescribed for service-connected disorders, and that the Board relied on that examiner's report in its October 2011 decision. However, the parties found that there were other potential bases for service connection for the cause of the Veteran's death raised by the record which the Board did not pursue prior to its October 2011 decision denying of the claim and which the Board did not adequately address in that decision. The parties cited Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), for the proposition that the Board must pursue all potential avenues of entitlement reasonably raised by the record. In this regard, they noted that a March 1990 chest x-ray revealed "[s]ome minimal bollous change [...] at the apices bilaterally," and that a July 1992 chest x-ray, one month prior to service separation, revealed "bilat[eral] apical pleural thickening-unchanged since '90." In the Joint Motion, the parties also noted that an October 2005 computed tomographic scan revealed "[m]oderate bollous emphysema in both lungs." They further noted that chronic obstructive pulmonary disease (COPD) was listed on the death certificate as a contributory cause of the Veteran's death, and then cited to Mayo Clinic literature to establish that emphysema was one of multiple diseases characterized as COPD. The parties took this combined evidence-evidence reflected in the record as well as medical reference from the Mayo Clinic-as reasonably raising (from the record) the question of service connection for COPD and thereby of service connection for the cause of the Veteran's death based on COPD originating in service. Accordingly, the Board must now develop this medical question upon remand, specifically, whether it is at least as likely as not that COPD developed in service or is otherwise causally related to service, including based on the March 1990 x-ray records from service and post-service periods, and if so, whether the COPD at-least-as-likely-as-not caused or significant contributed to death or otherwise hastened the onset of death. 38 C.F.R. §§ 3.303, 3.312 (2012). In addition, the parties also stipulated that the Board address whether the April 2011 VA examiner should have also addressed whether other medications taken by the Veteran for his service-connected disabilities contributed to the cause of death. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold requirement for an 'indication' of an association with service is low one. McLendon, 20 Vet. App. at 83. In the Joint Motion, the parties also noted that the coroner's report reflected positive toxicology for morphine, chlorpheniramine, venlafaxine, nortriptyline, mirtazapine, hydrocodone, and opiates, and that the coroner's report listed these findings in a line on the report reserved for identified causes of death. The Joint Motion then cited Van Valkenburg v. Shinseki, 23 Vet. App. 113 (2009), for the proposition that the Board must discuss all relevant evidence of record. Thus, the Board must recognize and address the theory of entitlement to service connection for the cause of the Veteran's death based on toxicity resulting from medications taken for treatment of service-connected disabilities, including those which were present on the coroner's report. Thus, upon remand examination, the examiner must also address this question. The parties also found that further efforts were needed to obtain VA treatment records were required, based on treatment records within the claims file mentioning treatment at the VA Florence outpatient clinic (OPC), in Florence, Kentucky. 38 C.F.R. § 5103A(c)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). However, in a January 2013 submission, the appellant's representative noted that, upon further review of the record this instruction of the Joint Motion was in error because records in the claims file from the Cincinnati VA Medical Center were inclusive of those Florence OPC records. However, the Board is unconvinced by this and other arguments made by the appellant's representative that seeking further records from the Florence OPC would be futile, and hence concludes that further efforts as directed by the Joint Motion should be undertaken. Golz, 590 F.3d at 1322. The appellant's authorized representative also submitted a January 2013 private medical report affording an opinion, in effect, that morphine prescribed for service-connected disability caused or substantially contributed to the Veteran's death. The representative argued that this opinion is sufficient to grant the claim, and hence the Board should simply grant service connection for the cause of the Veteran's death, instead of remanding the case pursuant to the Joint Motion. However, the Board notes that the January 2013 medical report conflicts with prior VA examination findings to require not only the remand development directed by the Joint Motion, but also that upon remand the VA examiner address the further medical issues raised by this conflicting evidence, as discussed below. In addition, the appellant's representative notes in his January 2013 submission that the appellant failed to respond to a VA request for authorization to obtain those records but contends that there was no medical report to be obtained from that facility and that "medical records pertaining to his death are unavailable." However, the Board notes that no attempts were ever made to secure obtain those records by VA because the appellant did not submit an authorization form permitting release of those private records to VA. Therefore, a further effort to obtain those records, with the appellant's cooperation, should be undertaken. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Regarding questions raised in medical opinions of record of morphine prescribed as part of treatment for service-connected disabilities or of morphine medically administered in the event of a cardiac event potentially having a role in the Veteran's death, the VA examiner in March 2009 stated, "Morphine is often given in cardiac arrest to relax the heart and relieve pain." The January 2013 report takes issue with this statement, with the private physician asserting, "Morphine is never given in the setting of cardiac arrest" (emphasis in the original). However, it appears possible that the March 2009 VA examiner may have meant to say "myocardial infarction" (which might have then led to cardiac arrest) rather than cardiac arrest as a review of medical literature via Google reflects that the acronym "MONA" serves as a mnemonic acronym for a nursing protocol of treatment in cases of acute myocardial infarction, and stands for 'morphine, oxygen, nitroglycerin, and aspirin.' (emphasis by the Board). See Ira Gene Reynolds, Emergency cardiac drugs: Essential facts for med-surg nurses, American Nurse Today, July 2010, Vol. 5 No. 7, located at http://www.americannursetoday.com/article.aspx?id=6882&fid=6846 (last accessed Feb. 13, 2013). The precise circumstances of the Veteran's death coincident with his being brought to the Owensboro Medical Center emergency department in March 2008 are at present unknown to the Board, because those medical facility records have yet to be obtained, as already noted. Thus, the question remains whether morphine was administered as part of emergency procedures at that facility. Upon remand examination, the examiner will address the relative merits of the findings of the March 2009 and April 2011 VA examination reports and the January 2013 private medical report, as informed by the balance of the record. 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. Afford the appellant the opportunity to submit additional evidence or argument in furtherance of her claim. 2. The RO should make appropriate efforts to obtain any indicated additional VA and private records pertinent to the claim, with necessary assistance and authorization from the appellant. In particular, any records from the VA Florence Outpatient Clinic (OPC) in Florence, Kentucky, not yet associated with the claims file should be obtained. The RO should document such efforts to obtain any additional Florence OPC records and should make an administrative finding as to whether all records from that facility were obtained and associated with the claims file. 3. The appellant should again be asked to provide authorization to obtain records of the March 2008 final emergency department visit of the Veteran at the Owensboro Medical Center in Owensboro, Kentucky, and records of any associated hospitalization or treatment immediately preceding his death. All requests, responses, and records received should be documented in the claims file. 4. Following the development ordered above, the RO should obtain a VA medical opinion from an appropriate specialist to address questions raised of possible contributing causes of the Veteran's death potentially related to service. The claims file must be made available to the specialist for review. The following must be undertaken: a. The examiner must review past medical findings, analyses, and conclusions, including particularly those made by VA physicians in March 2009 and April 2011 VA evaluation reports and those made by a private physician in a January 2013 report. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that morphine administered to treat service-connected disabilities caused or substantially contributed to the Veteran's death. Specifically, the examiner is asked to address the conflicts between the findings and conclusions of the March 2009 and April 2011 VA examiners and those of the January 2013 private medical examiner. Issues to be addressed include whether it is likely that the Veteran was a long-time user of morphine and whether he was thereby highly tolerant of the drug at the time of death; whether a history of drug tests passed prior to death had implications for the likelihood that drugs including prescribed morphine had a role in the Veteran's death; whether there was a diagnosis or objective evidence of sleep apnea; and the implications, if any, of possible sleep apnea for causes of the Veteran's death. The examiner should provide a reasoned analysis to support his or her opinions, addressing relevant evidence, inclusive of the pertinent findings and conclusions of the March 2009 and April 2011 VA evaluation reports, and the January 2013 private physician's report. b. A toxicology report from the time of death found not only morphine but also the following additional drugs: chlorpheniramine, venlafaxine, nortriptyline, mirtazapine, hydrocodone, and opiates. (It is unclear whether additional opiates were found besides morphine.) The examiner must also review the record and provide additional opinions, separately for each of these drugs, whether it is at least as likely as not (50 percent or greater probability) that the drug caused or substantially contributed to the Veteran's death or otherwise hastened the onset of death. If so, the examiner should address for that drug whether it is at least as likely as not (50 percent or greater probability) that the drug supports a secondary link between service and the cause of the Veteran's death based on the drug having been used to treat one of the Veteran's service-connected disabilities. The Veteran's service-connected disabilities include the following: herniated nucleus pulposus, L5-S1, status post hemilaminectomy; chondromalacia patella of the left knee with chronic medial collateral ligament strain and history of meniscectomy; left foot drop with radiculopathy associated with herniated nucleus pulposus, L5-S1, status post hemilaminectomy; and status post pilonidal cyst excision. The Veteran was not service connected for any other disabilities during his lifetime. The examiner must also comment on the listing of these drugs on the March 2008 coroner's report under the heading of "Toxicology positive" on a line appearing to indicate that these drugs contributed as causes of death. Were these drugs causes of death? c. The examiner should review service and post-service records and provide an opinion whether it is at least as likely as not (50 percent or greater probability) that COPD developed in service or is otherwise causally related to service. The examiner should also provide an opinion whether it is at least as likely as not that COPD caused or substantially contributed to the Veteran's death or otherwise hastened the onset of death. To provide these opinions, the examiner should explicitly address relevant or potentially relevant evidence, including in particular the following: (1) a March 1990 chest x-ray report noting "[s]ome minimal bollous change [...] at the apices bilaterally;" (2) a July 1992 chest x-ray report, one month prior to service separation, observing "bilat[eral] apical pleural thickening--unchanged since '90;" (3) an October 2005 computed tomographic scan revealing "[m]oderate bollous emphysema in both lungs;" and (3) the listing of history of COPD as a contributory cause of death on both the March 2008 coroner's report and the April 2008 death certificate. The examiner should note that the Veteran served on active duty from September 1973 to September 1976 and from August 1980 to August 1992. d. Any conclusion drawn or opinion provided should include discussion of specific evidence of record, and a complete explanation for the opinion given. 5. Thereafter, and following any additional appropriate development, the RO should readjudicate the remanded claim de novo. If any benefit sought is not granted to the appellant's satisfaction, the appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).