Citation Nr: 1327357 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-30 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service in the United States Army Air Corps from June 1942 to March 1946. The Veteran died in October 2009. The appellant is seeking benefits as the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that, in part, denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Original jurisdiction of the appellant's claim resides in the RO in St. Petersburg, Florida. The Board remanded the case for additional development in June 2013; the case has now been returned to the Board for appellate review. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims file. The issue of entitlement to nonservice-connected death pension benefits has been raised by the record, but that issue has apparently not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that matter, and it is referred to the AOJ for appropriate action. 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 The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board stated in the June 2013 remand that: The paper claims file currently contains just a few pages of VA treatment records for the Veteran dated in 2005 and 2006. The appellant's claim was addressed in the August 2010 rating decision and the October 2012 Statement of the Case (SOC). The rating decision stated that an "electronic review" of VA treatment records dated between August 2002 and 2009 had been performed; the SOC also cited to VA treatment records dated between August 2002 and September 2009. However, these records have not been included in either the paper claims file or Virtual VA and therefore they have not been included in the evidence of record before the Board. Review of the Veteran's death certificate reveals that he died while at the McGraw Center for Caring. However, no records from this facility have been included in the evidence of record. Therefore, VA is on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). While the case is in remand status, VA must obtain all outstanding VA inpatient and outpatient treatment records for the Veteran, as well as all pertinent private inpatient and outpatient treatment records, including the terminal treatment records. Despite the clear directive that VA must obtain all outstanding VA inpatient and outpatient treatment records for the Veteran, as well as all pertinent private inpatient and outpatient treatment records, including the terminal treatment records, on remand no VA records were obtained. In addition, the RO did not obtain any records from the McGraw Center for Caring. Furthermore, the Board noted in the June 2013 remand that private medical treatment records for the Veteran, dated between January 2003 and August 2009, had been received at the St. Petersburg RO on October 29, 2012 (prior to transfer of the file to the Board), and that this pertinent private medical information was newly obtained by the RO after the SOC was issued on October 23, 2012, and was not addressed in any Supplemental SOC (SSOC). On remand, the RO again failed to address this pertinent private medical information and the July 2013 SSOC includes no mention of that evidence. Finally, the June 2013 Board remand directed that the RO arrange for the Veteran's records to be reviewed for a determination of the causes(s) of the Veteran's death by an appropriate physician, such as a pathologist. The reviewer was to be provided with the entire claims file, including any records obtained pursuant to the remand directives. Instead of a pathologist, the RO astoundingly arranged for a review of the claims file by an obstetrician/gynecologist! Furthermore, as the medical opinion of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). In addition, the June 2013 VA medical opinion stated that there was "no known medical literature support that PTSD is causally related to any one of the Veteran's conditions." However, as pointed out by the appellant's representative in the August 2013 Informal Hearing Presentation, VA's National Center for PTSD does refer to such medical literature and has stated that "a number of studies have found an association between PTSD and poor cardiovascular health" and that "PTSD increases the risk for smoking four-fold". On remand, the RO must obtain a medical opinion that addresses these points. In D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), the Court held that there must be substantial compliance with the terms of a Board remand. Those requirements have not yet been fulfilled and the case, regrettably, must again be remanded. Accordingly, the case is REMANDED for the following action: (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. The October 2012 SOC cited to VA treatment records for the Veteran dated between August 2002 and September 2009. Obtain these records and associate them with the claims file. 2. With assistance from the appellant as needed, obtain the Veteran's treatment records from the McGraw Center for Caring and associate them with the claims file. 3. Contact the appellant to determine the names, addresses, and dates of treatment by any other physicians, hospitals or treatment centers (private, VA or other government) who provided the Veteran with relevant evaluation or treatment for his service-connected renal and PTSD disabilities or for his hypertension, coronary artery disease or chronic obstructive airway disease (COPD). After obtaining the appropriate release forms from the appellant, contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the cause of death claim, including all VA treatment and all private treatment, to the extent not already on file. 4. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 5. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed for a determination of the causes(s) of the Veteran's death by a pathologist. The reviewer must be provided with the entire claims file, including any records obtained pursuant to the above development, and a copy of this remand. If the reviewing physician does not have access to Virtual VA, any relevant records contained in the Virtual VA file that are not available to the reviewer must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewer is requested to provide an opinion as to the medical probability that any documented pertinent renal, pulmonary or cardiovascular condition is related to the Veteran's service-connected PTSD or to his left ureteral colic. In particular, the reviewer should discuss whether any service-connected disability aggravated, contributed to or accelerated any existing pulmonary, cardiovascular or renal disorder. The reviewer must refer to the VA's National Center for PTSD findings that "a number of studies have found an association between PTSD and poor cardiovascular health" and that "PTSD increases the risk for smoking four-fold" in addressing whether any service-connected disability aggravated, contributed to or accelerated any existing cardiovascular, pulmonary or renal disorder. The reviewer must provide an opinion as to the following questions: a. What was/were the primary/immediate cause(s) of the Veteran's death? b. What were the contributing conditions leading to the primary/immediate cause(s) of the Veteran's death? What role, if any, did the Veteran's service-connected disabilities play in (i) causing, or (ii) aggravating the conditions leading to his death? If the Veteran's PTSD or ureteral colic aggravated, contributed to or accelerated any renal, pulmonary or cardiovascular pathology, the reviewer should state to what extent the disability did so. c. What role, if any, did the Veteran's service-connected disabilities in the aggregate play in (i) causing, (ii) contributing substantially or materially to, or (iii) hastening the Veteran's death? Did the Veteran's left ureteral colic or his PTSD affect a vital organ such as the lungs, heart/vascular or renal system? Could either one of these two disabilities be characterized as having a progressive or debilitating nature? d. Was there any service-related pathology that caused general impairment of health such that the Veteran was materially less capable of resisting the effects of whatever disease or event was the primary cause of death? The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. In assessing the relative likelihood as to origin and etiology of the conditions specified above, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's death is causally or etiologically related to any incident of his active service, including any service-connected disability such as PTSD, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive 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 cause of the Veteran's death. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Upon receipt of the VA physician reviewer's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. Thereafter, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 8. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence (including the private medical treatment records for the Veteran dated between January 2003 and August 2009) and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).