Citation Nr: 1310837 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 07-15 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1977 with an additional 13 years, 7 months of prior active duty service. The appellant seeks benefits as the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. When this case was before the Board in January 2011, it was remanded for additional development. The case has since been returned to the Board for further appellate action. In the appellant's May 2007 substantive appeal (VA Form 9), she requested a hearing before the Board by videoconference from the RO. She failed to report for the October 2008 hearing without explanation and has not requested that the hearing be rescheduled. Therefore, her request for a Board hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue decided herein. 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 The Board finds that further development is necessary prior to final adjudication of the appellant's claim of service connection for the cause of the Veteran's death. The appellant's primary assertion is that the Veteran's service-connected primary cardiomyopathy contributed to his demise, to include that it "materially hastened" the onset of his heart disorders that caused his death in September 2005. See September 2006 notice of disagreement; June 2007 representative statement; December 2010 informal hearing presentation. The certificate of death shows the immediate cause of death as myocardial infarction due to or as a consequence of congestive heart failure and pneumonia. An autopsy was not performed. Service treatment records show that the Veteran had a grade II/VI systolic heart murmur in January 1977. In May 1977, one month following the Veteran's military retirement, a VA physician evaluated an electrocardiogram and diagnosed primary cardiomyopathy, for which service connection was granted in an October 1977 rating decision (effective the day following retirement). In September 2001, the Veteran's private physician noted that an electrocardiogram obtained in 2000 showed aortic stenosis. The physician continued to list this disorder in the Veteran's history for the next four years and ordered periodic monitoring. The latest record of medical care prior to the Veteran's death was an examination report from this physician in August 2005. The physician continued to note a history of mild aortic stenosis but that the Veteran was substantially asymptomatic with normal left ventricular function. The Veteran died in a private hospital one month later. The Board notes that the AMC sent a letter to the appellant in January 2011 that included a request to provide authorization for VA to obtain the outstanding records from this hospitalization; to date, the appellant has not provided such authorization. In response to the Board's January 2011 remand instructions, the claims file was forwarded to a VA physician for review and preparation of an opinion as to the claimed link between the Veteran's myocardial infarction and congestive heart failure and both his service-connected primary cardiomyopathy and/or potential ischemic heart disease, among other things. In addition, an indication was made in the body of the remand that recovery of the Veteran's service personnel records was necessary, as the record strongly suggested that the Veteran was present in the land area or inland waters of Vietnam during a time period in which exposure to herbicides is considered presumptive. Parenthetically, the Board again notes that for claims received by VA or pending on or after August 31, 2010, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), coronary bypass surgery; and stable, unstable and Prinzmetal's angina). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 3 (2012). A review of the claims file indicates that the Veteran's service personnel records are not of record, nor are any efforts to verify the Veteran's service in Vietnam otherwise noted in the record (e.g., Form 3101 printout). The Board recognizes the development efforts to date in this case; however, as this finding may be pertinent to the appellant's claim, further development is warranted in this regard. 38 U.S.C.A. § 5103A(a) (West 2002). In regard to the medical opinion, the Board notes that once VA undertakes the effort to obtain an opinion, the resulting opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim). In this case, the Board finds that the November 2011 opinion is inadequate. Specifically, an addendum opinion is needed to address whether the Veteran's myocardial infarction and/or congestive heart failure were components or manifestations of ischemic heart disease, to provide a clarifying opinion related to the Veteran's aortic stenosis, and to afford the VA physician an opportunity to provide any additional discussion as outlined in the remand instructions below. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate development to obtain and associate the Veteran's service personnel record with the claims file. The RO/AMC should also attempt to verify any periods of the Veteran's service in Vietnam through the appropriate channels, to include noting whether it can be determined that the Veteran was presumptively exposed to herbicides based on such service. All efforts in this regard should be documented in the claims file. 2. Then, the RO/AMC should forward the claims file to the VA physician who provided the November 2011 VA opinion for a complete review and preparation of an addendum opinion that addresses the following: a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's myocardial infarction and/or congestive heart failure were components or manifestations of ischemic heart disease. b. Clarify whether the Veteran's aortic stenosis (as noted in the private treatment records from 2001-2005) may be related, if at all, to the Veteran's causes of death. c. For the purposes of the opinion in this case, the physician is asked to presume that the diagnosis of the service-connected primary cardiomyopathy was proper at the time the diagnosis was made in 1977. In light of this consideration, provide any additional discussion as to the issue of whether it is at least as likely as not (50 percent probability or more) that a primary or contributing cause of death was related to the service-connected primary cardiomyopathy, if necessary. If the November 2011 VA physician is not available, the claims file should be provided to and reviewed by another physician with sufficient expertise to provide the required opinion. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide the required opinion, he or she should explain why the opinion cannot be provided. 3. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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 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). _________________________________________________ CHERYL L. MASON 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).