Citation Nr: 1316684 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 08-23 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Edward M. Farmer, Attorney ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1950 to March 1952. He died in October 2006, and the appellant is his surviving spouse. This case comes before the Board of Veteran's Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The issue of service connection for the cause of the Veteran's death is found to require additional development in this case. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). A service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or, that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Veteran's death certificate reflects that he died in October 2006. The immediate cause of death was cardiorespiratory arrest due to or as a consequence of metastatic cancer, probable lung primary. The noted onset of cardiorespiratory arrest was immediate, while the onset of metastatic cancer was listed as two weeks. Another significant condition contributing to death, but not resulting in the underlying cause, was listed as chronic obstructive lung disease. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), residuals of cold injury of the right and left lower extremities, and malaria. In an October 2006 statement, private physician Dr. H. (initials used to protect privacy) indicated that he had been the Veteran's physician for many years. He noted that the Veteran died in October 2006 of metastatic lung disease and commented that the Veteran suffered for many years with chronic obstructive lung disease secondary to long-time tobacco use. He also stated that the Veteran's tobacco use stemmed from his PTSD, which developed after serving in Korean War. Dr. H. noted that the Veteran had encountered considerable emotional and physical trauma in service, including frostbite of his extremities. He opined that the Veteran's death was directly attributable to his smoking history due to PTSD, with the ultimate development of lung cancer that then metastasized to his liver. In a December 2006 statement, a Savannah Vet Center licensed psychologist wrote that the Veteran had been a client of his since September 2000. He opined that the Veteran's death was "felt to be significantly related to his chronic suffering with PTSD." He noted that the Veteran was in receipt of a 100 percent rating for PTSD at the time of his death and that he also suffered from other service-related conditions due to exposure to extreme old during the Korean War. In addition, the psychologist noted that the Veteran used cigarettes to alleviate stress in his day-to-day life. He stated that, for the Veteran, the consequence of smoking outweighed the medical benefits of quitting due to the psychological impact of his PTSD. He felt that the Veteran's PTSD was a direct cause of his smoking and later development of lung cancer. The Board notes that, under 38 U.S.C.A. § 1103, for a claim filed after June 9, 1998, a Veteran's death shall not be service-connected on the basis that it resulted from injury or disease attributable to the use of tobacco products by the Veteran during the Veteran's service. Nevertheless, 38 U.S.C. § 1103 does not prohibit secondary service connection for a disability related to the Veteran's use of tobacco products after the Veteran's service, where that disability is proximately due to a service-connected disability not service-connected on the basis of being attributable to the Veteran's use of tobacco products during service. VAOPGCPREC 6-2003 (2003). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to a veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Further, the secondary disability may be considered as a possible basis for service connection of the veteran's death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation. Id. Given that the foregoing establishes a potential relationship between the Veteran's service-connected PTSD and his death from cardiorespiratory arrest due to or as a consequence of metastatic cancer, probable lung primary, and the fact that a VA opinion has not been obtained in this matter, the Board believes that the Veteran's claims file should reviewed by a VA physician for a comprehensive review of the record and an opinion as to the relationship, if any, between service or service-connected disability and the Veteran's death. In addition, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in a claim for service connection for the cause of the Veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. In this case, the appellant was sent a notification letter in December 2006 informing her of what information and evidence must be submitted by her and what information and evidence would be obtained by VA. However, this letter did not contain a statement of the conditions for which the Veteran was service-connected at the time of his death or explain what evidence was needed to show that the Veteran died from a service-related injury or disease to substantiate the claim for service-connection for the cause of the Veteran's death. Nor did it contain an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition and an explanation of the evidence and information required to substantiate the claim based on a condition not yet service- connected. Thus, upon remand, the appellant should be provided proper notice. Moreover, while this matter is on remand, attempts should be made to obtain treatment records leading up to the Veteran's death in October 2006. While the October 2006 statement from private physician Dr. H. is of record, no treatment records from Dr. H. are associated with the claims file. The Savannah Vet Center records have also not been obtained, although a Vet Center licensed psychologist indicated that the Veteran had been a patient there since 2000. The Veteran's death certificate reflects that he was an inpatient at Hospice Savannah, Inc., at the time of death, but records from this facility have also not been associated with the claims file. Efforts to obtain these records and any other outstanding treatment records should be undertaken. Accordingly, the case is REMANDED for the following action: 1. The RO should send the appellant a notice letter in connection with her claim for service connection for the cause of the Veteran's death. The letter should include: (1) a statement of the conditions for which the Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and, (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. The RO should provide the appellant and her representative the opportunity to provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for the cause of the Veteran's death that is not already of record, to specifically include private treatment records from Dr. H., Hospice Savannah, Inc., and the Savannah Vet Center. The RO should explain the type of evidence that will be obtained by VA and the type of evidence that is the appellant's ultimate responsibility to submit. If the appellant responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the foregoing development, the RO should forward the Veteran's claims file to an appropriate VA examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records and post-service medical records as well as the appellant's assertions. It should be noted that, during his lifetime, the Veteran was service-connected for posttraumatic stress disorder (PTSD), residuals of cold injury to the right and left lower extremities, and malaria. The examiner should provide an opinion as to whether it was at least as likely as not the Veteran's cause of death, including cardiorespiratory arrest, metastatic cancer ( probable lung primary), and chronic obstructive lung disease, was related to his military service. He or she should also state whether it is at least as likely as not that the Veteran's service-connected PTSD caused or contributed substantially to his death. In providing the requested opinions, the examiner should specifically consider and address the contention found in the October 2006 statement from Dr. H. and the December 2006 statement from the Vet Center psychologist that the Veteran's tobacco use and subsequent development of chronic obstructive pulmonary disease and lung cancer was due to his service-connected PTSD. Specifically, the examiner should address the following questions: (1) Did the Veteran's PTSD cause him to use tobacco products after service? (2) If so, was the use of tobacco products as a result of his PTSD a substantial factor in causing a secondary disability, such as cancer and/or cardiorespiratory arrest? (3) Would the secondary disability not have occurred but for the use of tobacco products caused by his PTSD? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO should undertake any other development it determines to be warranted. 5. The RO should then readjudicate the appellant's claim. If the benefits sought on appeal are not granted, the appellant and her representative should be provided a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ JESSICA J. WILLS 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).