Citation Nr: 1319403 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-17 149 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to June 1946. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In the March 2006 rating decision, the RO denied the issues of service connection for the Veteran's cause of death and eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. In a May 2006 letter, the RO in Chicago, Illinois notified the Appellant of the denial of her claims of entitlement to service connection for the cause of the Veteran's death, death pension, accrued benefits, and Dependents' Educational Assistance benefits. Jurisdiction rests with the RO in Chicago, Illinois, from which the appeal was certified. In her April 2008 Substantive Appeal, the Appellant requested a Board hearing to be held at the RO. The claim was subsequently certified to the Board in November 2010. As the record did not reflect that such a hearing had been scheduled, the Board remanded the Appellant's claim in July 2012 for a Board hearing. The record shows the RO scheduled the Appellant for a Board hearing to be held on February 20, 2013. However, in a February 2013 written statement, the Appellant and her representative requested that the Board hearing be rescheduled. Accordingly, the RO rescheduled the Board hearing for April 22, 2013. However, the Appellant did not appear for the Board hearing, and in an April 2013 informal hearing presentation, the Appellant's representative acknowledged that the Appellant had been unable to attend the hearing for health reasons. As neither the Appellant nor her representative have requested to reschedule the Board hearing, the request for a hearing is considered withdrawn, and the Board will proceed with adjudication of the Veteran's claim. 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 in Washington, DC. VA will notify the Appellant if further action is required. REMAND The Veteran died in October 2004. The Medical Certificate of Death reflects that the immediate causes of death were respiratory failure and advanced carcinoma of lung. Other significant conditions contributing to death but not resulting in the underlying causes of death were diabetes mellitus and arteriosclerotic heart disease. At the time of his death, the Veteran was service-connected for anxiety reaction rated as 50 percent disabling. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) addressed VA's 38 C.F.R. § 5103(a) notice obligations in the context of a claim for DIC benefits under 38 U.S.C.A. § 1310. The Court held that, because the RO's adjudication of a DIC claim hinges first on whether a veteran was service-connected for any condition during his or her lifetime, the 38 U.S.C.A. § 5103(a) notice in such a claim must 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 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. Hupp, 21 Vet. App. at 352-53. The Court also held that when an Appellant's DIC application and accompanying evidence expressly raises a specific issue regarding, or the evidence submitted in connection with it relates to, a particular element of a claim, VA is required to provide notice that informs the Appellant of how to substantiate the assertion advanced and takes into account the evidence submitted in connection with the application. Id. at 353. In October 2005, the Appellant received a letter pursuant to VA's notice obligations. However, review of the record does not show that the letter contained the notification elements required under 38 U.S.C.A. § 5103(a), as interpreted by the Court in Hupp. First, the letter provided in October 2005 did not inform the Appellant of the condition for which the Veteran was service-connected at the time of his death. In addition, the letter did not provide the Appellant with the information on how to substantiate the assertions she had made concerning the cause of the Veteran's death. This procedural defect should be cured on remand. The Appellant contends that the Veteran's service-connected anxiety reaction affected his ability to handle and be treated for the illnesses that ultimately caused his death. She argues that after the Veteran underwent surgery for lung cancer, he was unable to receive proper treatment for his anxiety. As a result, the Veteran's anxiety symptoms increased in severity, and he was unable to be weaned off of a ventilator. The Appellant contends that if the Veteran had been able to go off the ventilator, he could have received better treatment for his cancer. In support of her claim, the Appellant submitted an August 2005 letter from Dr. Douglas Ellis. Dr. Ellis reported that the Veteran underwent surgery in 2004 for lung cancer and ended up on a mechanical ventilator. Dr. Ellis reported that the Veteran was unable to ultimately be weaned off of the mechanical ventilator for any length of time. Dr. Ellis felt that the Veteran's service-related extreme anxiety was a significant contributor to the inability to wean him off of the ventilator. As a result, the Veteran suffered from a prolonged stay in a rehabilitation facility, as well as various complications from being on the mechanical ventilator. Dr. Ellis opined that he was not entirely certain that those complications directly contributed to the Veteran's death, but he wanted to reinforce the fact that the Veteran's service-connected anxiety did affect his ability to be weaned from the ventilator. The Appellant also submitted an August 2005 letter from Dr. M. B. Prabhu, who stated that one of the factors making the Veteran dependent on the ventilator was his chronic underlying anxiety disorder, which made it difficult to disconnect the Veteran from the ventilator so he could breathe on his own. Similarly, Dr. Douglas Maibenco asserted in a September 2005 letter that the Veteran's anxiety disorder was a contributing factor in the inability to wean him from the ventilator. A July 2004 hospital report indicates the Veteran was unable to be weaned off of the ventilator as he would generally decompensate with significant anxiety after a short period of time of being off of the ventilator. Generally, in a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Here, the medical evidence indicates that the Veteran's anxiety was a significant contributor to the inability to wean him off of a mechanical ventilator. However, there is no medical opinion of record as to whether the inability to wean the Veteran off of the ventilator, in relation to his service-connected anxiety reaction, caused or contributed to, or hastened, the Veteran's death, or rendered him less able to resist the effects of the fatal lung cancer. Given the medical complexity of the issue at hand, the Board finds that a medical opinion is necessary in order to properly adjudicate the claim. Moreover, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Consequently, in order to satisfy VA's duty to assist, the Board finds a remand is required to obtain a medical opinion from a VA examiner. Finally, the Appellant has asserted that there are multiple medical records available in addition to those already of record. Specifically, the Appellant identified a September 2004 consultation report from an oncologist, Dr. Benjamin Esparaz and Dr. Virgilio Dycoco, and a September 2004 letter and medical report from Dr. Benjamin Esparaz. In addition, the record indicates there may be outstanding records from Gottlieb Hospital and Prairie Rose Health Care Center pertinent to the Veteran's history of medical treatment. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). As the evidence does not appear to include these records, on remand the RO must attempt to obtain and associate all outstanding private treatment records with the claims file. 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 must send the Appellant a fully-compliant VCAA notice letter under 38 U.S.C.A. § 5103a and 38 C.F.R. § 3.159 (2012). This notice letter must include (1) a statement of the condition for which the Veteran was service-connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on the Veteran's previously service-connected disorder, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In addition, the letter must explain what, if any, information and evidence not previously provided to VA is necessary to substantiate the assertions advanced by the Appellant, to include her assertions regarding the Veteran's service-connected anxiety reaction and treatment for the immediate and underlying causes of his death. 2. Obtain, with assistance from the Appellant as needed, any outstanding records from Dr. Benjamin Esparaz, Dr. Virgilio Dycoco, Gottlieb Hospital, and Prairie Rose Health Care Center, as well as any other identified private treatment records. To the extent that an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made, and the Appellant and her representative must be informed of the negative results and be given the opportunity to secure the records. 3. The RO must then obtain a medical opinion from a VA examiner as to whether the cause of the Veteran's death was etiologically related to his active duty service and/or service-connected disability. The claims file must be made available to the examiner for review. Following a review of the evidence of record, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that any disease or injury incurred in or aggravated by the Veteran's active duty service either caused or contributed substantially or materially to, or hastened his death, or rendered him less capable of resisting the effects of the disease primarily causing death? b. Is it at least as likely as not (50 percent probability or greater) that the Veteran's respiratory failure, advanced carcinoma of the lung, diabetes mellitus, or arteriosclerotic heart disease were incurred in or aggravated by active duty service? c. Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected anxiety reaction either caused or contributed substantially or materially to, or hastened his death, or rendered him less capable of resisting the effects of the disease primarily causing death? In providing the opinion, the examiner must reconcile his or her opinion with the private physicians' statements of record regarding the relationship between the Veteran's service-connected anxiety reaction and his inability to be weaned off of a mechanical ventilator. The examiner should also comment on the Appellant's assertions that the Veteran's service-connected anxiety reaction prevented him from obtaining the necessary treatment for the causes of death. In addition, the examiner is advised that the term at least 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 causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings, must be included in the examination report. 4. Then, readjudicate the claim of entitlement to service connection for the cause of the Veteran's death. If the benefit sought on appeal is not granted to the Appellant's satisfaction, the Appellant and her representative must be provided with a Supplemental Statement of the Case. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). _________________________________________________ U. R. POWELL 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).