Citation Nr: 1314433 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-16 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant & son ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1954. The Veteran died in November 2008 and the appellant in this matter is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying entitlement to service connection for the cause of death and accrued benefits. Following a hearing before the Board, sitting at the RO, in November 2011, the Board by its February 2012 decision denied accrued benefits claims for service connection for residuals of a cold injury involving the right lower extremity and for peripheral vascular disease of the right lower extremity. In addition, the Board remanded the cause of death issue to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. Further remand of this matter by the Board to the AMC was necessitated in December 2012, and following the AMC's attempts to complete the actions requested, the case has been returned once again to the Board for further review. Notice is taken that 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). This appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required on her part. REMAND By its remand of December 20, 2012, the Board directed the AMC to return the report of a medical opinion, dated March 23, 2012, to its preparer, G. Vuppala, M.D., for the preparation of an addendum to her earlier report. That addendum was to address the question of aggravation of any direct or contributory cause of death by service-connected residuals of cold injuries to the left lower and both upper extremities. If Dr. Vuppala was unavailable, then another VA medical professional was to be directed to prepare the addendum. What was provided in response was a report, dated December 12, 2012, from a VA orthopedic examiner, identified simply as "Wolf", that is electronically signed by T. Kinchelow-Schmidt, Staff Physician. Aside from the timing irregularity, the response furnished to the question of whether it was at least as likely as not (50 percent or greater probability) that any direct or contributory cause of the Veteran's death was aggravated by his service-connected residuals of cold injuries involving both upper extremities and the left lower extremity was, in pertinent part, as follows: [I]t is less likely than not that the Veteran's vascular problems are related to the event of frostbite he experienced more than 50 years ago while in military service. From the response received the Board finds that the question posed as to aggravation has not been adequately addressed so as to permit entry of a final adjudication of the merits of the appellate issue presented. Remand for corrective action is deemed necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the case is REMANDED for the following actions: (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. Return the report of a medical opinion, dated December 12, 2012, and electronically signed on January 30, 2013, to permit the reviewing VA medical professional to undertake a further review of the claims folder, prior to the preparation of an addendum to the earlier reports. That addendum should address the question of aggravation of any direct or contributory cause of death by his service-connected residuals of cold injuries to the left lower and both upper extremities. The Veteran's VA claims file must be furnished to the VA reviewer for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, the reviewing VA medical professional is asked to address the following question, providing a complete rationale with citation to the record for the medical opinion furnished: Is it at least at likely as not (50 percent or greater probability) that any direct or contributory cause of the Veteran's death was aggravated by service-connected residuals of cold injuries involving both upper extremities and the left lower extremity? The addendum should specifically address the private opinions that suggest that inservice frostbite contributed to the Veteran's vascular problems. See April 2007 and April 2010 statements, Dr. B.; January 2009, Dr. N.; and May 2010, Dr. S. The VA medical professional is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of aggravation as against. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA reviewer is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 2. Thereafter, readjudicate the issue on appeal and if the benefit sought is not granted, provide the appellant with a supplemental statement of the case and permit her a reasonable period for a response, before returning the case to the Board for further review. No action by the appellant is needed until she receives further notice. 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). _________________________________________________ M. E. LARKIN 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).