Citation Nr: 1317307 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 12-34 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran had active military service from March 1967 to May 1971. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the appellant is represented by a private attorney on other issues that have been developed for appeal. Those issues will be addressed in a separate decision. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The Veteran died in July 2010. His death certificate reflects that the immediate cause of his death was cardiac arrest. Arteriorsclerotic cardiovascular disease was listed as the underlying cause of death, with hyperlipidemia and Type II diabetes listed as other conditions leading to the cause of death. Tobacco use disorder was identified as a significant condition contributing to death, but not resulting in the underlying cause. At the time of his death, the Veteran was service connected for post-traumatic stress disorder (PTSD), rated as 50 percent disabling; post-operative residuals of laceration of the right extensor pollicis longus tendon of the right hand, rated as 20 percent disabling; sensory neuropathy of the right (major) hand radial distribution, rated as 20 percent disabling; a right femur fibroma, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; scar, status postoperative residual of right extensor pollicis longus tendon repair right hand, rated as 10 percent disabling; and bilateral sensorineural hearing loss, rated as noncompensably disabling. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312(a) (2012). A service-connected disability is considered the "principal" (primary) cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A "contributory" cause of death is inherently one not related to the principal cause. Id. § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. Upon receipt of a complete or substantially complete application for service connection for the cause of a veteran's death, VA must provide notice to the claimant which, among other things, contains a statement of the conditions, if any, for which the veteran was service connected at the time of his death. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The sole notice provided the appellant in connection with her claim (in September 2010) does not contain that information. Corrective action is therefore required. In her notice of disagreement, dated in June 2011, the appellant related that the Veteran had always told her that he had been "in country" in Vietnam for one day during his period of active duty. Consistent with her report, the evidence contains several statements from the Veteran wherein he indicated that he had been in Vietnam for one day during service. See, e.g., Veteran's Application for Compensation and/or Pension, dated January 21, 2004 (p. 2); VA Mental Health Outpatient Note, dated February 1, 2006. None of the service treatment or personnel records currently in the claims file reflects the Veteran's presence in Vietnam for any period of time. However, if his presence in Vietnam were established, that fact would be significant, inasmuch as the Veteran could be presumed to have been exposed to herbicides, and two of the conditions listed on the Veteran's death certificate (Type II diabetes and arteriosclerotic/atherosclerotic cardiovascular disease) are recognized as presumptively due to such exposure. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e) (2012). Under the circumstances, and in order to afford the appellant every possible consideration, the Board finds that an attempt should be made to verify the Veteran's presence in Vietnam, through the service department. In a written presentation dated in April 2013, the appellant's representative advanced argument to the effect that the Veteran's hyperlipidemia could be attributed to his active military service, and that it aggravated and exacerbated his arteriosclerotic cardiovascular disease. The representative also advanced argument to the effect that the Veteran's PTSD caused or exacerbated his tobacco use disorder. On the current record, the Board finds no competent evidence to suggest that the Veteran's hyperlipidemia was incurred in service. The Board notes, however, that the Veteran was treated for chest pain during service, in January 1968. In addition, the claims file contains treatment records from the Vet Center in Sarasota, Florida, dated in January 2008 and March 2008, which appear to suggest that the intensity of the Veteran's tobacco use (i.e., cigarette smoking) may have been affected by his level of stress. In the context of a claim for service connection for the cause of a veteran's death, VA is required to obtain a medical opinion as to the relationship between the veteran's death and service unless no reasonable possibility exists that such an opinion would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Here, the RO has obtained a medical opinion, in October 2012, with respect to the likelihood of a relationship between the Veteran's death and his service-connected PTSD, vis-a-vis his cardiovascular disease. However, no medical opinion has been procured with respect to the likelihood that the Veteran's cardiac death can be attributed to the chest pain of which he complained during service, or whether his tobacco use disorder (identified as significant condition contributing to death) was caused or made worse by service-connected PTSD. See VAOPGCPREC 6-2003 (Oct. 28, 2003) (holding that service connection can be established for disability related to a veteran's use of tobacco products after service as secondary to, for example, a service-connected psychiatric disability). Because the Board cannot conclude that no reasonable possibility exists that such an opinion would aid in substantiating the claim, additional development is necessary. 38 C.F.R. § 19.9 (2012). For the reasons stated, this case is REMANDED for the following actions: 1. Send a corrective notice letter to the appellant and her representative pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)). The letter must contain the information required by Hupp, to particularly include a complete statement of all conditions for which the Veteran was service connected at the time of his death. The appellant and her representative should be given a reasonable opportunity to respond to the notice, and any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Contact the service department and ask it to indicate whether it has in its possession any evidence to show that the Veteran was "in country" in Vietnam for one or more days during his period of active duty, as alleged. The response received should be associated with the claims file. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran's claims file forwarded to the VA physician who previously provided an opinion in this case in October 2012. The physician should be asked to review the claims file and prepare a supplemental report containing an opinion with respect to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hyperlipidemia, arteriosclerotic cardiovascular disease, and/or death from cardiac arrest can in any way be attributed to his period of active military service. In so doing, the physician should discuss the significance, if any, of the Veteran's complaints of chest pain during service in January 1968. If the October 2012 VA physician is no longer employed by VA, or is otherwise unavailable, arrange to obtain the requested opinion from another qualified physician. A complete rationale for all opinions should be provided. 4. Also arrange to have the Veteran's claims file forwarded to a VA psychiatrist or psychologist for purposes of obtaining a medical opinion with respect to the relationship, if any, between the Veteran's service-connected PTSD and his tobacco use disorder. Specifically, the mental health professional should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's PTSD caused or permanently worsened his tobacco use disorder. In so doing, the psychiatrist or psychologist should discuss the significance, if any, of the evidence indicating that the Veteran made multiple unsuccessful attempts at tobacco cessation, and treatment records from the Vet Center in Sarasota, Florida, dated in January 2008 and March 2008, which appear to suggest that the intensity of the Veteran's smoking may have been affected by his level of stress. A complete rationale for all opinions should be provided. 5. After conducting any additional development deemed necessary, the claims file should again be reviewed. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the appellant and her representative, and afford them an opportunity to respond. After the appellant and her representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the appellant until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2012).