Citation Nr: 1310940 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-01 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia 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 WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from January 1947 to January 1950. He died in May 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In October 2011, the Board reopened the appellant's claim for service connection for the cause of the Veteran's death; thereafter, in October 2011 and in August 2012, the claim was remanded for additional development and to satisfy notice requirements. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. 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 action on her part is required. REMAND The Veteran's death certificate shows that he died in May 2006. The immediate cause of his death listed was an abdominal aortic aneurysm (AAA) due to, or as a consequence of, diffuse cardiovascular disease (for 20 years); there were no conditions listed on his death certificate as significant conditions contributing to death but not resulting in the underlying cause of death. At the time of the Veteran's death, he had established service connection for only one disability: pleural tuberculosis, rated 10 percent. Throughout the period of claim, the appellant has contended that the Veteran's service-connected pleural tuberculosis significantly contributed to his death. Specifically, she has alleged that just prior to his death, while walking back toward his bed, his tuberculosis-related shortness of breath and coughing caused him to lose his balance and fall and hit his stomach on the bed, which ruptured the AAA and caused his death. However, in her most recent statement received in February 2013, the appellant presented a new contention: that the Veteran's death-causing AAA was caused or aggravated by his service-connected pleural tuberculosis. Specifically, she alleges that the Veteran's tuberculosis infection caused the AAA which eventually fatally ruptured. Records pertaining to the diagnosis and treatment of the AAA were not previously sought because they were not then identified as relevant. Given the new theory of entitlement raised, they are clearly pertinent evidence which must be secured for the record, if available (including records pertaining to the 1996 surgery for this condition). Prior to his death the Veteran testified (at an October 1995 hearing before a Decision Review Officer (DRO) at the RO in connection with a previous claim) that symptoms associated with his left lung condition included stomach pain. In January 1996, the Veteran and his wife co-authored a statement noting that the Veteran had discomfort and pain in his stomach which started after a lung operation in 1994. In October 1996, the Veteran submitted treatise information listing potential causes of aneurysms; local infection was noted as one such cause, and the Veteran circled the words "local infection" and added a handwritten note indicating that the tuberculosis he had in service was one such infection. After the Veteran's death, the appellant submitted treatise information regarding tuberculosis infection; the article noted that tuberculosis infection has been reported in the wall of the aorta, causing it to rupture. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected; service connection may also be established for the degree of aggravation of a nonservice-connected condition by a service-connected disability. See 38 C.F.R. § 3.310. None of the medical opinions currently of record address whether the Veteran's service-connected pleural tuberculosis caused or aggravated his fatal AAA. Such an opinion must be obtained prior to further adjudication of the claim on appeal. Accordingly, the case is REMANDED for the following: (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 RO should ask the appellant to identify the provider(s) of any evaluation or treatment the Veteran received for his AAA (records of which are not already associated with the record), and to provide all releases necessary for VA to secure any private records of such treatment or evaluation (to specifically include records pertaining to the Veteran's surgery for his AAA in 1996). The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. 2. After the above-requested development is completed, the RO should arrange for the Veteran's claims file (to include this remand) to be forwarded to an appropriate physician for review and a medical advisory opinion as to the following: (a) Is it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's fatal AAA was caused by his service-connected pleural tuberculosis? (b) Is it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's fatal AAA was aggravated by his service-connected pleural tuberculosis? The physician should explain the rationale for all opinions given with reference to pertinent evidence. The explanation should include discussion of the theory of entitlement newly raised by the appellant (discussed above), and comment on the treatise evidence (also noted above) submitted by the Veteran prior to his death, and the appellant thereafter. 3. The RO should ensure that all of the development sought is completed, and then review the record and re-adjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).