Citation Nr: 1323968 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-19 913A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Christopher J. Boudi, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to August 1945. The Veteran died in September 2006 and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In May 2013, the appellant testified in a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is located in the appellant's file in "Virtual VA." In this regard, in evaluating this case, the Board has not only reviewed the appellant's physical claims file, but has also reviewed the appellant's file on the Virtual VA system to ensure a complete assessment of the evidence. The appeal is REMANDED to the RO. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the appellant's claim of service connection for the cause of the Veteran's death so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). During the May 2013 hearing before the undersigned, the appellant indicated that the Veteran received treatment for metastatic transitional cell cancer at the University of Chicago Hospital. The cause of death as listed on the Veteran's Certificate of Death, dated September 2006, is metastatic transitional cell cancer. VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b). At the time of the Veteran's death, the appellant testified that she was told the cause of the Veteran's death was pneumonia. See hearing transcript at 6. The appellant asserted that the Veteran's service-connected residual of a shell fragment wound in the lumbosacral region may have contributed to his cause of death since the Veteran had told her he still had shrapnel in his back, he had back pain, and was told that his cause of death was pneumonia. The appellant, through her representative, also contended that the service-connected residual of a shell fragment wound, specifically, shrapnel fragments in the back, could have been the cause of the Veteran's cancer. Id. at 3-4. There is no medical opinion of record addressing these assertions. Based on these facts and in light of the United States Court of Appeals for Veterans Claims' decision in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) and the provisions of 38 C.F.R. § 3.159(c)(4), the Board finds that there is insufficient medical evidence of record to decide this case. Therefore, a remand for a medical opinion is necessary to assist the Board in determining the cause of death and possible contribution from the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request the necessary release to obtain copies of all records of treatment of the Veteran from the University of Chicago Hospital in Chicago, Illinois. All records obtained should be associated with the claims file. If the records do not exist or further efforts to obtain the records would be futile, a negative response should be included in the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). The appellant is advised that she must complete an authorized release form in order for VA to obtain the private treatment records. 2. After associating all outstanding records with the claims folder pursuant to the above-requested development, request that the appropriate VA physician review the claims file and comment on the appellant's claim. The claims file, to include a copy of this entire remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. All findings should be reported in detail. The examiner should then provide an opinion as to the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disabilities, specifically to include bilateral trench feet and residual of a shell fragment wound in the lumbosacral region, were a principle or contributory cause of the Veteran's death. In rendering the requested opinion, the examiner is asked to specifically address the appellant's assertion that the Veteran had shrapnel fragments in his back from the service-connected shell fragment wound in the lumbosacral region, which caused or contributed to his cause of death, and that she was told the Veteran's cause of death was pneumonia. The examiner is advised that regulations define a disability as a "principle cause of death" when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. Similarly, regulations define a disability as a "contributory cause of death" as inherently one not related to the principal cause and in determining whether the disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an 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 etiology of the disorder. 3. When the development requested has been completed and compliance with the requested actions has been ensured, the claim should again be reviewed on the basis of the additional evidence. If the benefit sought is not granted, furnish a supplemental statement of the case to the appellant and her representative and afford her a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ K.J. ALIBRANDO 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).