Citation Nr: 1320022 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-34 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for cause of the Veteran's death, to include entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to January 1958. The Veteran died in December 2005; the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2006 rating decision by the Department of Veterans Affairs Atlanta, Georgia Regional Office (RO) located in Decatur, Georgia. A Board video conference hearing was held before the undersigned Veterans Law Judge in May 2013. A copy of the hearing transcript has been associated with the Veteran's Virtual VA electronic record. 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). As a final preliminary matter, the Board notes that the Veteran's Virtual VA electronic record was reviewed in conjunction with the claims file. 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 claims service connection for cause of the Veteran's death, to include entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. The Board finds that further development is necessary with respect to this issue. Initially, the Board observes that the certificate of death shows that the Veteran died in December 2005. The immediate cause of death was listed as respiratory failure, and the underlying cause was listed as lung cancer. At the time of his death, the Veteran was service-connected for the following disabilities: residuals of left femur fracture with 1/2 inch shortening; degenerative lumbar spine; residuals, right foot injury with restriction of ankle motion and arthritis of the right mid-foot; facial scarring, disfiguring; arthritis, left knee; and degenerative joint disease of the left hip. He was also receiving a total disability rating due to individual unemployability as of November 18, 2004. Service treatment records showed that the Veteran was involved in a motor vehicle accident where a head on collision with another vehicle occurred. The appellant asserts that the Veteran suffered a chest contusion during this incident that resulted in scar tissue in the chest which contributed to the formation of his lung tumor. Hospital reports document chest tenderness and a fracture of the 1st left rib. The Veteran's service-connected disabilities also primarily stem from this accident. In the alternative, the appellant has also asserted that the VA's failure to timely diagnose the Veteran's lung cancer also caused and/or substantially or materially contributed to his death. The appellant has identified pertinent treatment records for the Veteran prior to his death dated in April 2004 from Parrish Medical Center and in July 2004 from Cape Canaveral Hospital. While some of these treatment records have been submitted by the appellant, it is unclear whether all of the relevant records from these facilities have been associated with the record. In turn, as these records have been identified as pertinent to the appellant's claim, the RO should take appropriate steps, including obtaining any necessary authorizations, to obtain these records. See 38 C.F.R. § 3.159(c)(1). Moreover, the appellant has also asserted that the Veteran sought treatment in 2004 from the Viera, Florida VA Outpatient Clinic (OPC) and subsequently beginning approximately in July 2005 from the Dublin, Georgia VA Medical Center (VAMC) and Augusta, Georgia VAMC. Again, while the appellant has submitted some treatment records from these facilities, it is unclear whether the record is complete. As VA medical records are constructively of record and must be obtained, the RO should obtain all VA treatment records from the Viera, Florida OPC, the Dublin, Georgia VAMC and the August, Georgia VAMC. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, a VA opinion has not been rendered in this case. Given the appellant's contentions discussed above, the Board finds that a VA medical opinion is necessary to determine whether the cause of the Veteran's death was related to service, to include his service-connected disabilities as well as the car accident described in the service treatment records, and in the alternative whether any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment in failing to timely diagnose the Veteran's lung cancer caused and/or substantially or materially contributed to his death. See 38 U.S.C.A. § 5103A(a)(1); DeLarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Accordingly, the case is REMANDED for the following actions: (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. The RO should take appropriate action, including obtaining any necessary authorizations, to obtain copies of all of the Veteran's treatment records from Parrish Medical Center and Cape Canaveral Hospital. If these records are unavailable, it should be clearly noted in the claims file. 2. The RO should obtain all VA treatment records from the Viera, Florida VA OPC, the Dublin, Georgia, VAMC, and the Augusta, Georgia VAMC. 3. After completion of the above and any additional development deemed necessary, the claims file should be sent to an appropriate VA medical doctor, if possible, for a medical opinion. After reviewing the claims file, the examiner should offer an opinion as to the following: a) Whether it is as likely as not (a 50 percent or greater degree of probability) that any service-connected disability caused or substantially or materially contributed to the Veteran's death. b) Whether the Veteran's disabilities that caused or substantially or materially contributed to his death were as likely as not (a 50 percent or greater degree of probability) directly related to service, to include any injuries suffered during the automobile accident documented in the service treatment records. Consider the theories proposed by the Appellant. c) Whether there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment by VA in the treatment of the Veteran, including any failure to timely diagnose the Veteran's lung cancer. The examiner is specifically requested to discuss the medical records concerning his treatment at the Viera, Florida OPC prior to his transfer to the Georgia VA facilities. The examiner should provide a detailed rationale for all opinions expressed. 4. The RO should then review the VA examiner's opinion to ensure it adequately responds to the posed questions and that any opinion is based on a clear rationale. If remedial action is necessary, the opinion should be returned to the examiner for an appropriate addendum. 5. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).