Citation Nr: 1325231 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 04-24 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active military service from June 1943 to July 1946 and from June 1951 to November 1956. He died in March 2003. The appellant is his claimed surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant testified before the undersigned at a January 2006 hearing at the RO. A transcript of the hearing is on file. By decision of May 2006, the Board denied the appellant's claim for service connection for the cause of the Veteran's death and for entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court). The Board's May 2006 decision was vacated and remanded to the Board pursuant to Court Order of April 2007 which incorporated a Joint Motion for Partial Remand (Joint Motion) made by the parties. The Board remanded this case in July 2007 for additional development. In a March 2008 decision, the Board denied the appellant's claim for service connection for the cause of the Veteran's death and for entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318. The appellant appealed the Board's March 2008 decision to the Court. In a November 2009 memorandum decision, the Court vacated the part of the Board's decision that denied service connection for the cause of the Veteran's death and remanded this matter to the Board for further development and readjudication. In June 2010, the Board remanded the claim for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The appellant asserts that the Veteran's service-connected posttraumatic stress disorder (PTSD) and suicidal ideation caused or materially contributed to his death. In June 2010, the Board remanded the claim for a medical opinion, which was provided in February 2012. Unfortunately, the opinion is inadequate to make a full determination on this claim. Therefore, a remand is necessary. The Veteran's death certificate reflects that the immediate cause of his death was acute myocardial infarction due to or a consequence of congestive heart failure and pneumonia. The appellant contends that the Veteran was reckless with respect to his health because he wanted to commit suicide and that medical records document the severity of the Veteran's PTSD, including his desire to kill himself. She furthers that the Veteran played Russian roulette with a loaded gun, deliberately abused alcohol and prescription drugs, and that he checked himself out of a hospital against medical advice. Notably, the Veteran left the emergency room against medical advice 24 hours prior to his admission in February 2003 to Kennedy Health System. She contends that the Veteran's service-connected PTSD caused or contributed to his death, to include as a result of his suicidal ideation. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death, that it combined to cause death, or 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. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Although the February 2012 VA examiner provided a detailed explanation for her opinion that the Veteran's PTSD did not directly cause his death, the question remains as to whether his PTSD substantially or materially contributed to his death. Therefore, a remand for a supplemental opinion is needed. The Board also notes that the February 2012 VA examiner indicated that the private medical records from the facility where the Veteran was admitted to prior to his death were not available; however, records from Kennedy Health System dated from February to March 2003 appear to have been in the claims file at the time of her review and she indicated that she reviewed the claims file. Hence, a supplemental opinion is also warranted for this reason. Accordingly, the case is REMANDED for the following actions: 1. Arrange for claims file review by the February 2012 VA examiner, or another equally qualified examiner, to obtain a supplemental opinion as to the cause of the Veteran's death. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner's review should include private treatment records from Kennedy Health System dated from February to March 2003 (the facility where the Veteran was admitted at the time of his death). The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or more probability) that the Veteran's PTSD, including any suicidal ideation, caused him to be reckless with his health or otherwise contributed substantially or materially to hasten his death? The examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the requested medical opinion cannot be given, the examiner should state the reason why. 2. Thereafter, the RO should readjudicate the claim for service connection for cause of the Veteran's death in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the appellant and her attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ MICHAEL D. LYON 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).