Citation Nr: 1324713 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 12-14 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to October 1945, so during World War II. He died in September 1998. The appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that determined there was not new and material evidence and, therefore, denied her petition to reopen her claim for service connection for the cause of the Veteran's death. In February 2013 the Board instead found that new and material evidence had been submitted to reopen this claim. But rather than immediately readjudicating this claim on its underlying merits, so on the required de novo basis, the Board then proceeded to remand this reopened claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The AMC since has continued to deny the claim, as reflected in a June 2013 supplemental statement of the case (SSOC), and resultantly has returned the file to the Board for further appellate consideration of the claim. Since, however, the claim requires still further development, the Board is again remanding the claim to the RO via the AMC. But please also note the Board already has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claim, but it is necessary to ensure there is a complete record and so the appellant-widow is afforded every possible consideration. The Veteran's death certificate lists his immediate cause of death as cardiorespiratory arrest with an underlying cause of metastatic non-small carcinoma of the lung. Other significant conditions contributing but not resulting in the underlying cause were atrial fibrillation, congestive heart failure (CHF), cold, and cigarette smoking. The appellant-widow alleges the Veteran's death was the result of his exposure to Mustard Gas during his military service. Alternatively, she alleges that stress caused by his service-connected posttraumatic stress disorder (PTSD) put an inordinate amount of pressure on his heart. As already alluded to, the Board remanded the reopened claim in February 2013 to obtain a medical nexus opinion. See DeLaRosa v. Peake, 515 F. 3d 1319, 1322 (Fed. Cir. 2008). The Board instructed that the examiner was to discuss the underlying rationale of the opinion. A medical opinion was obtained in May 2013. Unfortunately, however, as pointed out by the appellant's representative in his July 2013 Informal Hearing Presentation (IHP), the examiner provided no explanatory rationale for the opinion. Another remand therefore is required to obtain an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (requiring that VA ensure the adequacy of all opinions obtained); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from its underlying reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). The appellant-widow also has reported that the Veteran received treatment from Dr. W., a psychiatrist at the Montgomery VA Medical Center (VAMC). A July 1998 treatment record from Baptist Medical Center affirms the Veteran was being followed for major depression and PTSD by Dr. W. at the VAMC. In December 1996, Dr. W. stated that he had been treating the Veteran for the past several years. The most recent treatment records from the Montgomery VAMC currently of record are dated in January 1996. Particularly in light of the appellant's argument that the Veteran's service-connected PTSD put an abnormal amount of stress on his heart, any more recent treatment records from this VAMC should be obtained on remand, considering that it was not until more than two years later, in September 1998, when the Veteran died. 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice and possession of these additional records, assuming they exist, since generated and maintained within VA's healthcare system, so in the custody of the agency even if not physically in the file). Remand is also required to obtain records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Of note, an August 1995 private treatment record reflects that the Veteran had been on Social Security disability for 20 years. He reported in a June 1996 statement that he had been on SSA disability since 1974. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining "relevant" SSA records. The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them. Relevant records were defined under 38 U.S.C. § 5103A as those relating to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Id. , at 1321. The Federal Circuit Court also pointed out that "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit Court thus concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id., at 1323. Here, at the moment it simply is indeterminate whether these SSA records are relevant, and in this circumstance the Board is obligated to obtain them on the chance they are. Accordingly, this cause-of-death claim is again REMANDED for the following additional development and consideration: (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. Request any outstanding treatment records from the Montgomery VAMC dated between January 1996 and September 1998 (to particularly include any psychiatric treatment records from Dr. W.). Since, assuming they exists, these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain these records as are necessary to comply with this VA regulation. Also notify the appellant-widow if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Also obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits, as well as copies of all medical records underlying those determinations. 3. Upon receipt of all additional records or determination that no additional records exist or that any further attempts to obtain them would be futile, forward the claims file to the physician that provided the May 2013 opinion, if still available, for a supplemental medical nexus opinion. In particular, this physician needs to provide explanatory rationale for concluding the Veteran's service-connected PTSD, gunshot wound to the left index and middle fingers, and gunshot wound to Muscle Group III are less likely than not causally related to the terminal cancer of the lung or the other conditions noted at the time of his death. Although the examiner must review all of the relevant evidence in the claims folders, her attention is specifically directed to the following evidence: * During an October 1948 VA examination, the Veteran reported that he had heart trouble which had started about a year earlier. He added that he had had treatment for a heart or stomach condition by Dr. E. and Dr. T. He described then current pains around his heart. Examination of the cardiovascular system and respiratory system was normal. * A chest X-ray obtained during a VA hospitalization in February 1963 was negative. * In October 1974, the Veteran was admitted to the Montgomery VAMC for treatment of alcoholism, but routine chest X-ray was suggestive of active pulmonary tuberculosis. Two sputum smears were positive for tuberculosis. He was transferred to the Tuskegee VAMC for treatment of pulmonary tuberculosis, where he remained until June 1975. * A September 1987 chest X-ray revealed several nodular densities in the upper halves of both lung fields compatible with old granulomatous disease such as due to histoplasmosis or tuberculosis. It was noted that multiple metastasis also would give the same appearance and no previous films were available for comparison, therefore, clinical correlation was requested. * A chest X-ray obtained in conjunction with a March 1988 VA examination revealed a differential diagnosis of old healed tuberculosis, histoplasmosis versus the unlikely possibility of metastasis have to be considered. * During a February 1989 Board hearing, the Veteran testified that he had experienced chest pain shortly after separating from service, and that he went to see Dr. T. who told him his heart was okay. He then was sent to Dr. E. who gave him medication for his nerves. * In a January 1992 letter, the Veteran's private physician wrote that the Veteran's records, dating back to 1987, showed that he had documented emphysematous changes on chest X-ray and severe chronic obstructive lung disease. The physician added that the records indicated the Veteran had emphysematous changes dating back to his diagnosis of pulmonary tuberculosis in the late 1970s. * In a March 1993 letter, the Veteran's VA psychologist stated that the Veteran's PTSD symptoms were so severe he often had difficulty knowing what was real and unreal and had stopped driving himself. He experienced daily flashbacks and had panic attacks if he came into contact with others. * In a September 1993 letter, the Veteran's VA psychologist indicated the Veteran's PTSD was one of the most severe cases of this condition he had treated and had caused the Veteran to become virtually isolated in his community. * In October 1993, the Veteran presented to a private emergency room with the complaint of a pressure sensation in his chest followed by diaphoresis and mild shortness of breath, occurring after awakening from a nightmare. He denied a previous history of cardiac problems or myocardial infarction, but gave a history of chronic obstructive pulmonary disease (COPD). Chest X-ray revealed COPD. The radiologist commented that there were multiple small pulmonary nodules noted in both upper lobes, due either to metastatic neoplasm or granulomatous infection. The discharge summary from this facility reflects that the Veteran reported he was aware of the spots on his lungs, which he had had since being treated for pulmonary tuberculosis in 1974. The discharge diagnoses were chest pain, anxiety, and COPD. * In a June 1994 letter, the Veteran's private physician stated that the Veteran had been diagnosed with COPD and stated that he was exposed to Mustard Gas during World War II, which could account for his symptoms or at least contributed to this condition. * In an October 1995 letter, the Veteran's private psychiatrist described the Veteran's PTSD as chronic and severe; adding that it was quite difficult to manage without intermittent inpatient treatment. * An April 1998 record from Baptist Medical Center reflects that the Veteran had recurrent pneumonia in the right lower lobe and was a long-term cigarette smoker who quit about one month earlier. He underwent a limited right thoracotomy with wedge resection and biopsy of a right lower lobe lesion. The April 1998 pathology report revealed diagnoses of a necrotic granuloma and poorly differentiated large cell malignancy. * A July 1998 record from Baptist Medical Center indicates that the Veteran smoked a pack of cigarettes a day for more than 40 years, but stopped smoking in March. It was noted that the Veteran had no known previous cardiovascular illness. * The appellant asserts, as reflected in a December 2009 statement, that the Veteran's tuberculosis contributed to his lung cancer. * In a February 2011 letter, the Veteran's physician indicated that he had reviewed the Veteran's chart and opined that his lung cancer may have come from his prior tuberculosis history and ultimately caused his untimely death. In a May 2011 letter, this physician wrote that the Veteran's pulmonary tuberculosis treated in 1974 and 1975 left behind significant scarring of the lung which, in his opinion, resulted in a "scar carcinoma of his lung" ultimately contributing to his demise. * In her July 2012 VA Form 9, the appellant argued that the stress associated with the Veteran's service-connected PTSD put an abnormal amount of pressure on his heart. * In a December 2012 statement, the Veteran's son indicated that the Veteran's PTSD and other medical conditions prevented him from conforming to normal behavior and maintaining gainful employment. The examiner is asked to again provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's cardiorespiratory arrest, metastatic non-small carcinoma of the lung, atrial fibrillation, CHF, and/or the cold listed on his death certificate were incurred in or aggravated by his military service. This commenting physician should also provide another opinion as to likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected PTSD, gunshot wound to the left index and middle fingers, and/or gunshot wound to Muscle Group III either caused or contributed substantially or materially to his death or caused or aggravated the cardiorespiratory arrest, metastatic non-small carcinoma of the lung, atrial fibrillation, CHF and/or cold listed on his death certificate. In rendering this supplemental (addendum) opinion, the examiner must consider and address the appellant's allegation that stress from the Veteran's service-connected PTSD placed an inordinate amount of pressure on his heart. The examiner must also consider the Veteran's documented history of chronic smoking and discuss what role, if any, that played in his eventual death. It is most essential, however, that the examiner discuss the underlying medical rationale for all opinions expressed, if necessary citing to specific evidence in the file supporting her conclusions. If, for whatever reason, it is not possible to have this same examiner provide this additional comment, then have someone else do it that is qualified to make these necessary determinations. 4. Then readjudicate this cause-of-death claim in light of this and all other additional evidence. If this claim continues to be denied, send the appellant-widow and her representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant-widow has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).