Citation Nr: 1325736 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-33 978 ) 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: Mark R. Lippman, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from July 1942 to August 1945. The appellant is the Veteran's widow. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2011. A transcript of the hearing is of record. During the hearing, the appellant submitted additional evidence along with the appropriate waiver. In an October 2011 decision, the Board denied service connection for the cause of the Veteran's death. Thereafter, the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, a Joint Motion for Remand (JMR) was filed requesting that the October 2011 Board decision be vacated and that the matter be remanded to the Board for readjudication in compliance with the JMR. In November 2012, the Court granted the JMR and remanded the matter to the Board for actions consistent with the terms of the joint motion. In July 2013, the Veteran's attorney submitted additional evidence in support of the Veteran's claim, to include an opinion from a private physician, L. B., M.D. The attorney also submitted a waiver of original jurisdiction review at that time. 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 In the October 2012 JMR, the parties indicated that a remand was required because the Board applied an incorrect legal standard on the question of whether VA fulfilled its duty to assist when it decided against obtaining an opinion with regard to secondary service connection. The parties noted that the Board determined that the appellant was not entitled to a medical opinion under McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The parties observed that contrary to the Board's action, 38 C.F.R. § 3.159(c)(4), as construed by McLendon, was not applicable to Dependency and Indemnity Compensation (DIC) claims. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed Cir. 2008)("Section 5103A(d)(1) explicitly limits its applicability to claims for disability compensation"); see also Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). The parties observed as the Court explained in Wood, the two provisions in question, sections 5103A(a) and (d) (the latter interpreted in section 3.159(c)(4)), "apply wholly different and unrelated requirements." Wood, 520 F. 3d at 1349. The parties indicated that with regard to whether the requested medical opinion was necessary to resolve the questions before the Board and whether "no reasonable possibility" existed that such an opinion would aid in substantiating the appellant's claim, the Federal Circuit held that "such assessments are precisely the types of factual inquiries that are beyond the Court's jurisdiction under 38 U.S.C. § 7292." Similarly, such assessments should be made by the Board in the first instance, and failure to make them was error requiring remand. See Stevens v. Principi, 289 F. 3d 814, 817-18 (Fed. Cir. 2002). The parties indicated that the Board should determine whether the appellant was entitled to a VA medical opinion regarding her assertion of secondary service connection under the correct legal standard. As it relates to the appellant's claim for service connection for colorectal cancer, resulting in the Veteran's death, as secondary to his service-connected disabilities, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that in his October 2007 report, C. B., M.D., the County Medical Examiner, indicated that PTSD had specifically been known to affect the gastrointestinal tract. He further stated that through PTSD's known association with poor health, in part through mediating behavioral factors like "smoking, substance abuse, diet, and lack of exercise", the gastrointestinal tract could be further compromised, thus leading to the development of colorectal cancer. In his March 2008 opinion, the VA examiner opined that the Veteran's PTSD was not related to or a significant cause of death. The examiner found that the Veteran's significant health disorders were related to head injuries and his stroke in February 2002. While the VA examiner, in his April 2008 addendum report, indicated that he did not see a clear relationship between the Veteran's PTSD and the development of a stroke, which was the significant contributor the Veteran's overall health demise, the examiner did not address if the Veteran's service-connected PTSD caused or aggravated (permanently worsened) his colorectal cancer, which was listed as the primary cause of the Veteran's death. The examiner also did not address whether the Veteran's other service-connected disabilities caused or aggravated (permanently worsened) his colorectal cancer. In a May 2013 report, L. B., M.D., indicated that based upon records reviewed and publications/US government public health website attributions noted in the report, it was his opinion that the Veteran's PTSD was a contributing factor to his death in that it caused his alcohol and tobacco abuse, which in turn specifically contributed to his 2002 fall and stroke, subsequent debilitated state and associated pneumonia and colorectal cancer. He indicated that these conditions in turn caused his death. In accordance with the JMR and giving the appellant benefit of the doubt as to whether an examination would be warranted under 38 U.S.C. § 5103A(a), an opinion should be obtained to determine whether the Veteran's service-connected disabilities caused or permanently aggravated his colorectal cancer, which was the primary cause of the Veteran's death. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to an appropriate VA examiner for an opinion as to whether the Veteran's colorectal cancer, which was the primary cause of his death, was at least as likely as not (50 percent probability or greater) caused or aggravated by (permanently worsened) by his service-connected PTSD; residuals of a fracture of the fifth metatarsal of the left foot; or hypertrophic tonsillitis. The examiner should also comment on whether the Veteran suffered from alcoholism, and, if so, the cause of the alcoholism to include its relationship to the Veteran's service-connected PTSD, and what impact, if any, the Veteran's alcoholism played in the February 2002 fall to include whether fall caused the stroke suffered by the Veteran the following day, and whether the debilitating state resulting from the stroke aid or lent assistance to the production of death, to include the development of colorectal cancer and/or pneumonia. In rendering the opinion, the examiner must make reference to and discuss the March 2007 opinion from Dr. C. B., the March and April 2008 opinions from the VA examiner, and the May 2013 opinion from L. B., M.D. Complete detailed rationale is requested for each opinion that is rendered. 2. Following the completion of the above to the extent possible, the RO should readjudicate the issue of entitlement to service connection for the cause of the Veteran's death. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case, and should be given the opportunity to respond thereto before the case is returned 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 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). _________________________________________________ D. C. Spickler 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).