Citation Nr: 1317552 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-30 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from February 1942 to July 1944. He died in July 2006, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The claim was remanded by the Board in May 2011 and July 2012 for additional development, and it now returns to the Board for appellate review. In December 2009, the appellant and her daughter testified before the undersigned Veterans Law Judge (VLJ), seated at the RO. A transcript of the hearing is associated with the claims file. 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 further action is required. REMAND In July 2012, the Board found that further development was necessary before a decision on the merits could be made regarding service connection for cause of the Veteran's death. Specifically, the Board determined that articles and treatises referenced by the appellant's representative in a May 2012 submission should be obtained and another VA opinion requested once those documents were added to the claims file. The post-remand record shows that efforts were made to obtain the abstracts of these articles, as well as information about the authors. However, the complete articles are not in the claims file. The file does not contain an explanation for why the complete articles were not obtained, although the Board observes that the RO noted that the articles were about a general connection between PTSD and heart/vascular disease and not about the Veteran specifically. Additionally, the only post-remand medical opinion is a November 2012 re-print of the September 2011 VA opinion. The May 2012 remand clearly ordered that another VA opinion was to be obtained. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, as the Board's orders in the May 2012 remand were not followed, a third remand is necessary in this case. Accordingly, the case is remanded for the following actions: 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/AMC should request and obtain the complete articles associated with the abstracts and other reference material added to the claims file in September 2012. If any complete article cannot be obtained, that fact should be noted in the claims file. The steps taken to obtain the articles must be noted in the file, if they are not obtained, and an explanation provided as to why they were unable to be obtained. 2. The RO/AMC should forward the Veteran's claims file, a copy of this remand, and the aforementioned treatises to the VA examiner who previously reviewed the claims file and offered a medical opinion in September 2011 to again review the complete claims file and to offer a revised medical opinion. If that examiner is no longer available the complete claims file should be submitted to another qualified VA clinician for review prior to completion of the requested medical opinion. Following a thorough review of the claims file and all available medical records to include the treatises referenced above, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's service-connected PTSD (1) either alone or in combination with some other condition was the immediate or underlying cause of death or was etiologically related thereto; (2) contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death; or (3) caused or aggravated the Veteran's senile dementia, Alzheimer's type. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner should specifically acknowledge and discuss Dr. Thai's treatise, and the referenced Interheart studies; the October 2009 letter from a Phoenix VAMC physician noting the Veteran had vascular dementia; and, the statements provided by the Veteran's representative and the Veteran's spouse, including her September 2007 statement in which she alleges that the Veteran did not die of Alzheimer's disease, but that he had a heart condition, vascular disease, and serious diabetes which when considered with his PTSD either contributed or caused his death. The examiner should also consider and refer to the appellant's original claim that the Veteran's death was as the result of anesthesia used in hip surgery in May 2006 whose effects he never recovered from. The examiner must review and discuss the Veteran's complete medical history. The examiner must provide a complete rationale for any opinion offered. 3. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the appellant and her representative have had an adequate opportunity to respond, return the appeal 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).