Citation Nr: 1318083 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-30 672A ) 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: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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 Veteran had active service in the United States Army Air Corps from June 1942 to March 1946. The Veteran died in October 2009. The appellant is seeking benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that, in part, denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Original jurisdiction of the appellant's claim resides in the RO in St. Petersburg, Florida. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims file. The issue of entitlement to nonservice-connected death pension benefits has been raised by the record, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter, and it is referred to the AOJ for appropriate action. 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 Additional development is necessary with respect to the issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the Appeals Management Center (AMC)/RO for action as described below. The paper claims file was transferred to the Board on February 21, 2013. The paper claims file currently contains just a few pages of VA treatment records for the Veteran dated in 2005 and 2006. The appellant's claim was addressed in the August 2010 rating decision and the October 2012 Statement of the Case (SOC). The rating decision stated that an "electronic review" review of VA treatment records dated between August 2002 and 2009 had been performed; the SOC also cited to VA treatment records dated between August 2002 and September 2009. However, these records have not been included in either the paper claims file or Virtual VA and therefore they have not been included in the evidence of record before the Board. Review of the Veteran's death certificate reveals that he died while at the McGraw Center for Caring. However, no records from this facility have been included in the evidence of record. Therefore, VA is on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). While the case is in remand status, VA must obtain all outstanding VA inpatient and outpatient treatment records for the Veteran, as well as all pertinent private inpatient and outpatient treatment records, including the terminal treatment records. All records obtained must be associated with the claims file. In addition, the appellant submitted private medical treatment records for the Veteran, dated between January 2003 and August 2009, that were received at the St. Petersburg RO on October 29, 2012. Thus, the RO was in receipt of those private records prior to the transfer of the claims file to the Board in February 2013. Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 states that a supplemental statement of the case (SSOC) will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal. In this case, pertinent private medical information was newly obtained by the RO after the SOC was issued on October 23, 2012, and was not addressed in any SSOC. An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. In this case, no such SSOC was issued after the private treatment records for the Veteran were added to the evidence of record. Since additional development is required on remand, since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, it must be referred back to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. At the time of his death, service connection had been established for the Veteran's posttraumatic stress disorder (PTSD) (rated 50 percent disabling) as well as for the residuals of dysentery and for left ureteral colic (each rated as zero percent disabling). The Veteran died in October 2009, and the original death certificate lists the immediate cause of his death as chronic obstructive airway disease due to, or as a consequence of chronic ischemic heart disease due to, or as a consequence of congestive heart failure due to, or as a consequence of respiratory failure. An amended death certificate lists the immediate cause of the Veteran's death as renal failure due to, or as a consequence of hypertension due to, or as a consequence of coronary artery disease due to, or as a consequence of respiratory failure. The appellant contends that the service-connected left ureteral colic was an underlying cause of the Veteran's renal failure. No medical opinion was obtained in relation to that contention. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a medical opinion should have been obtained regarding any connection between the Veteran's service-connected renal disability and the renal failure listed on his amended death certificate. In addition, the appellant contends that the Veteran had terrible stress related to the service-connected PTSD that caused or contributed to his severe heart problems. She feels that this stress caused generalized illness and possibly contributed to the Veteran's hypertension and/or ischemic heart disease. She argues that the PTSD had an extremely deleterious effect on the Veteran's health such that the PTSD contributed substantially or materially and/or that the PTSD combined to cause death and/or that the PTSD aided or lent assistance to the pathology that ultimately caused his death. She contends, in essence, that the PTSD worsened or aggravated the medical problems that led to the Veteran's death. There is no medical opinion of record which addresses the question of whether the Veteran's cardiovascular pathology had been aggravated by his PTSD and/or his renal disability. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim). On remand, such an opinion must be obtained. The medical evidence of record is insufficient for the Board to render a decision. The considerations above require investigation by medical professionals as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO 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. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. In particular, ensure that appellant and her representative have received notification the meets the requirements as interpreted by the Court in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The letter must explain, what, if any, information and evidence (medical and lay) not previously provided to VA is necessary to substantiate the assertions advanced by the appellant; the evidence of record concerning her assertions must be taken into account. 2. Contact the appellant to determine the names, addresses, and dates of treatment by any physicians, hospitals or treatment centers (private, VA or other government) who provided the Veteran with relevant evaluation or treatment for his service-connected renal and PTSD disabilities or for his hypertension, coronary artery disease or chronic obstructive airway disease. After obtaining the appropriate release forms from the appellant, contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the cause of death claim, including all VA treatment and all private treatment, to the extent not already on file. 3. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 4. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed for a determination of the causes(s) of the Veteran's death by an appropriate physician, such as a pathologist. The reviewer must be provided with the entire claims file, including any records obtained pursuant to the above development, and a copy of this remand. If the reviewing physician does not have access to Virtual VA, any relevant records contained in the Virtual VA file that are not available to the reviewer must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewer is requested to provide an opinion as to the medical probability that any documented pertinent renal or cardiovascular condition is related to the Veteran's service-connected PTSD or to his left ureteral colic. In particular, the reviewer should discuss whether any service-connected disability aggravated, contributed to or accelerated any existing cardiovascular or renal disorder. The reviewer must provide an opinion as to the following questions: a. What was/were the primary/immediate cause(s) of the Veteran's death? b. What were the contributing conditions leading to the primary/immediate cause(s) of the Veteran's death? What role, if any, did the Veteran's service-connected disabilities play in (i) causing, or (ii) aggravating the conditions leading to his death? If the Veteran's PTSD or ureteral colic aggravated, contributed to or accelerated any renal or cardiovascular pathology, the reviewer should state to what extent the disability did so. c. What role, if any, did the Veteran's service-connected disabilities in the aggregate play in (i) causing, (ii) contributing substantially or materially to, or (iii) hastening the Veteran's death? Did the Veteran's left ureteral colic or his PTSD affect a vital organ such as the heart/vascular or renal system? Could either one of these two disabilities be characterized as having a progressive or debilitating nature? d. Was there any service-related pathology that caused general impairment of health such that the Veteran was materially less capable of resisting the effects of whatever disease or event was the primary cause of death? The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. In assessing the relative likelihood as to origin and etiology of the conditions specified above, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's death is causally or etiologically related to any incident of his active service, including any service-connected disability such as PTSD, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the cause of the Veteran's death. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Upon receipt of the VA physician reviewer's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 6. Thereafter, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 7. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).