Citation Nr: 1323550 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-31 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her daughter and son-in-law ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from February 1952 until January 1954 and was the awarded the Purple Heart medal for injuries sustained in Korea. He died in August 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for the cause of the Veteran's death. The appellant appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO in August 2012. A transcript of the hearing has been associated with the 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 Although the Board regrets any further delay, a remand is necessary so that additional development may be conducted on remand. The Federal Circuit has provided that 38 U.S.C.A. § 5103A(a), and not (d), applies to dependency and indemnity compensation (DIC) claims. Section 5103A(a) indicates that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Section 5103A(a) "only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C.A. § 5103A(a)) (citations omitted). After carefully considering the evidence of record, the Board finds that an additional VA medical opinion is needed to ascertain the relationship, if any, between the Veteran's death and his service. The Board acknowledges that a VA opinion was obtained in July 2011. The July 2011 VA examiner opined that it was "less likely as not" that the Veteran's death was caused or a result of his service-connected posttraumatic stress disorder (PTSD) and that there was "no evidence" suggesting that PTSD or any other service-connected leg injuries caused the Veteran to give up hope of recovery. However, as will be discussed below, this opinion is inadequate. As an initial matter, the VA examiner does not appear to have considered the June 2005 VA treatment note indicating that the Veteran complained that he did not get much out of life due to health problems or the statement made by the September 2006 VA examiner that the Veteran's PTSD symptoms were related to changes in functional status and quality of life. Thus, because the examiner stated there was "no evidence" of any connection between PTSD and the Veteran's hope for recovery, the existing opinion is found to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Secondly, after the July 2011 opinion, the appellant, her daughter, and her son-in-law testified that the Veteran's service-connected disabilities and declining health, especially the loss of his mobility and ability to care for his daily needs, negatively impacted the Veteran's mental outlook. They explained "by the time he got . . . in the wheelchair, . . . it was over for him . . . mentally." Additionally, the Veteran's step-son also submitted a statement indicating that the Veteran said that the Veteran rather die than continue with the daily embarrassments resulting from his inability to attend to his basic needs. The appellant, and her daughter, son-in-law, and step-son are competent to attest to the things that they witnessed through their own five senses, including the demeanor and statements made to them by the Veteran regarding his outlook on life. See Layno v. Brown, 6 Vet. App. 465 (1994). However, because the July 2011 examiner did not have the opportunity to review the favorable lay evidence submitted in this case, this evidence should be reviewed on remand. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The Board also finds that an opinion on secondary service connection in this case is "necessary to substantiate the claimant's claim for a benefit" under 38 U.S.C.A. § 5103A(a) and DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The witnesses essentially testified that the Veteran's service-connected injuries prevented him from exercising, which exasperated his respiratory condition. A review of the record reflects that the immediate cause of death listed on the death certificate is chronic obstructive pulmonary disease (COPD). The Veteran was service-connected for the following disabilities at the time of his death: fracture, left tibia, with limitation of motion of the left knee and retained metallic foreign bodies; PTSD; post-operative scar of the left leg; right hip tendonitis; low back strain; tonsillitis; scar, right sacroiliac region; osteomyelitis, left tibia; and left flat foot. In an April 2004 statement, the Veteran stated that exercise was needed badly but that he was unable to walk more than a few steps without extreme pain in the right hip due to service-connected problems. As early as 2004, VA treatment records reflect that the Veteran was counseled on the role of exercise, but it was noted that he had a history of dypsnea on exertion and poor effort tolerance due to, in part, hip pain. In a 2005 consultation for a wheelchair, it was noted that, in addition to respiratory problems, the Veteran could not stand very long secondary to pain in his hips/knees; thus, it was concluded that the Veteran would benefit from a scooter to aid with mobility "secondary to medical conditions." In September 2005, he was again advised to eat less and exercise more. In July 2006, it was noted that the Veteran had trouble getting out of the recliner because of leg pain and breathing difficulty. Significantly, a December 2007 VA treatment report indicated that the Veteran's moderate to severe COPD was from, at least in part, obesity. This evidence reasonably raises the question of secondary service connection for COPD. It is noted that neither the appellant nor the other lay persons have been shown to have the training and expertise to render a competent opinion on this complex medical question. As there is insufficient medical evidence of record, the VA examiner is also requested to provide an opinion as to whether the Veteran's service-connected disabilities may have caused or aggravated the Veteran's COPD beyond its natural progression, thus contributing to his ultimate demise. 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. Obtain an addendum opinion from the July 2011 VA examiner, or any other qualified medical professional, regarding the impact of the Veteran's service-connected disabilities on the cause of the Veteran's death. The claims file and any relevant medical records contained in Virtual VA must be made available to and reviewed by the examiner. The VA examiner is specifically requested to provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's PTSD caused or, if not a direct cause, otherwise contributed substantially or materially to cause his death. In rendering this opinion, the VA examiner is directed to discuss (1) the June 2005 VA treatment note indicating that the Veteran complained that he did not get much out of life due to health problems; (2) the September 2006 VA examination report indicating that the Veteran's dysthymic disorder is considered a characteristic of his PTSD and that the Veteran's PTSD symptoms are related to changes in functional status and quality of life; and (3) the lay statements from the Veteran's step son and from the appellant, her daughter, son-in-law regarding the Veteran's comments on his quality of life. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities caused or aggravated the Veteran's COPD beyond its natural progression. In rendering this opinion, the examiner is requested to discuss (1) what impact, if any his service-connected disabilities had on the Veteran's ability to exercise and/or obesity, and (2) the December 2007 VA treatment report indicating that COPD is from, in part, obesity. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond. 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). _________________________________________________ C. CRAWFORD 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).