Citation Nr: 1325146 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-20 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to October 1951. He died in February 2008, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in July 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal is being REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if action on her part is required. REMAND The appellant contends that the Veteran's cause of death (carcinoma of the lung, non-small cell type, with contributory renal cell carcinoma) was attributable to his service-connected posttraumatic stress disorder (PTSD), which was rated 100 percent at the time of his death in February 2008. She claims that the severity of his PTSD compromised his immune system as well as increased his dependency on smoking, which were factors that led to the development of the fatal cancers and his death. The April 2008 VCAA notice to the appellant was a generalized notice that did not identify the Veteran's service-connected disabilities, among other things, and did not comply with Hupp v. Nicholson, 21 Vet. App. 342 (2007). The notice defect must be cured. The appellant submitted a medical release form, authorizing the RO to obtain records from Peninsula Hospital dated from May through June 2007, regarding treatment of the Veteran for cancer and a mental health disability (PTSD). The hospital responded with a request for a copy of the Veteran's death certificate with the appellant named as guarantor. The requested information was sent to the hospital in February 2009, but there has been no reply from the hospital and the RO has not followed up on the records request. Moreover, the Veteran's death certificate indicates that he died at St. Mary's Residential Hospice in February 2008, but terminal records from that facility were not sought for the record. Finally, the appellant argues that the RO mischaracterized the medical opinion of Dr. Mitchell Martin, the Veteran's treating physician, as speculative. She asserts that the physician was the Veteran's cancer doctor and saw firsthand how the Veteran responded to PTSD and how PTSD affected his treatment plan and led to delays in therapy. Notably, Dr. Martin's April 2008 medical opinion, which was favorable to the appellant's claim, is largely conclusory (such as stating that PTSD "complicated treatment" for the Veteran but not explaining how) and without citation to significant facts in the record. Given this, an adequate medical opinion (with rationale) regarding the cause of the Veteran's death is necessary. As the current record is insufficient to decide the claim, further development under the duty to assist is required. Accordingly, the case is REMANDED for the following: 1. Send the appellant a corrective VCAA notice in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007), specifically, (1) a statement of the conditions for which the Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The notice letter should be sufficiently "tailored," and must respond to the particulars of the application submitted. Allow the appellant the appropriate amount of time to respond. 2. Send a follow-up request for records from Peninsula Hospital in Knoxville, Tennessee, regarding treatment of the Veteran from May 2007 through June 2007 for cancer and a mental disability (PTSD), for association with the record; note the lack of response to the previous request. If the records are unavailable, notify the appellant in accordance with 38 C.F.R. § 3.159(e). 3. Request the appellant to obtain the Veteran's terminal records from St. Mary's Residential Hospice, or to submit a medical release authorizing VA to obtain the records on her behalf. 4. After the above development is completed, send the claims file to an appropriate VA physician for review and an advisory medical opinion regarding the cause of the Veteran's death in February 2008. Upon review of the record and medical and scientific literature, the consulting provider should offer an opinion as to whether it is at least as likely as not (a 50 % or greater probability) that the Veteran's service-connected PTSD was a principal or contributory cause of his death. In providing an opinion, the examiner should note that the Veteran's PTSD was rated 100 percent since October 2004. The examiner is asked to consider, and comment upon, the medical opinion offered by Dr. Mitchell Martin in April 2008, which states that it was at least as likely as not that the Veteran's PTSD was a contributory cause of his death from lung and kidney cancer. Dr. Martin, the Veteran's cancer physician, briefly explained that PTSD complicated treatment for the Veteran and led to delays in psychiatric therapy, as well as possibly contributed to tobacco abuse that led to the cancer development. In formulating an opinion, the VA examiner is asked to consider the following: A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, 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. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability, which would include service-connected disease or injuries of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. If the consulting physician is unable to provide the requested opinion without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the provider does not have the needed knowledge or training). The consulting physician must explain the rationale for all opinions. 5. Following completion of the foregoing development, adjudicate the claim of service connection for the cause of the Veteran's death. If the benefit sought remains denied, furnish the appellant a supplemental statement of the case and return the case to the Board. 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2012).