Citation Nr: 1319919 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-22 296 ) 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 WITNESSES AT HEARING ON APPEAL Appellant and C. E. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to October 1945. He died in December 2009 and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claim currently resides at the St. Petersburg, Florida RO. In March 2012, the appellant's representative submitted additional medical evidence along with a waiver of RO review of this evidence. In June 2013, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. 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 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 The appellant seeks service connection for the cause of the Veteran's death. According to the Veteran's death certificate, his immediate cause of death was pancreatic cancer due to, or as a consequence of, rheumatoid arthritis with contributing condition of degenerative disc disease (DDD). At the time of his death, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD); ankylosis, right elbow, residual gunshot wound with fracture of humerus with degenerative joint disease (DJD); hearing loss; residuals of gunshot wound, muscle group VII; scar of donor site, right thigh; and tinnitus. The appellant testified at the June 2013 hearing that the death certificate incorrectly states that the Veteran had DDD when what he really had was DJD which contributed to the Veteran's death. Specifically, she argues that due to the severity of his DJD, the Veteran was unable to receive chemotherapy for the pancreatic cancer that resulted in his death. In support of her claim, the appellant submitted statements from two private physicians. In letters dated in March and July 2011, F. K. Inge, M.D. reported that the Veteran was "in such a frail, weakened state at the time of diagnosis with pancreatic cancer that all further treatment options were contraindicated." Dr. Inge felt that the "degenerative disease that he suffered was most likely as not a sequelae from injuries sustained while on active duty during World War II." In a March 2012 letter, M. M. Eves, M.D. reported that "prior to being able to receive chemotherapy, the functional status of the patient is evaluated." Dr. Eves stated that the Veteran did not meet the qualification for chemotherapy and that "one of the reasons for his inability to meet the standard was a progressive degenerative joint disease that was initially brought on by ankylosis of the right elbow related to a gunshot wound with a fracture of the humorous." Dr. Eves stated with certainty that "this contributed to his inability to obtain chemotherapy for the pancreatic cancer that resulted in his death." In light of the appellant's contentions and private medical opinions, the Board finds it necessary to obtain a VA medical opinion that is based on thorough review of the record. Moreover, the record indicates that the Veteran was treated by Dr. Inge at the time of his death. The Board observes that these terminal treatment records should be obtained. Accordingly, the case is REMANDED for the following action: (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. After obtaining the appropriate release of information forms where necessary, procure the Veteran's terminal treatment records from Dr. Inge. If any such records identified by the appellant are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. The RO should then arrange for the Veteran's claims file (and a copy of this remand) to be forwarded to an appropriate physician for review and a medical advisory opinion as to whether the Veteran's service-connected disabilities, at least as likely as not (i.e., a 50 percent or better probability), caused or contributed to cause or hastened his death. The opinion should specifically address and discuss the plausibility of the appellant's theory of entitlement, i.e., that due to the severity of his DJD, the Veteran was unable to receive chemotherapy for the pancreatic cancer that resulted in his death. If the opinion is negative, the consulting physician should further opine whether any cause of the Veteran's death (primary, underlying, or contributory) was somehow otherwise related to his service. The consulting physician should explain the rationale for all opinions, citing to supporting factual evidence; the examiner should also comment on the opinions already of record (expressing agreement or disagreement with each, and explaining the rationale for the agreement or disagreement). 3. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and her representative the opportunity to respond. The case should then be 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). _________________________________________________ L. M. BARNARD Acting 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).