Citation Nr: 1327647 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-46 011 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to December 1945. He died in December 2008. The appellant is the Veteran's widow. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of VA's Pension Management Center in Milwaukee, Wisconsin, which denied, in pertinent part, the appellant's claim for dependency and indemnity compensation (DIC). The appellant timely appealed. Subsequently, the matter was transferred to the RO in Chicago, Illinois. In October 2012, the Board remanded the appellant's claim for DIC benefits for additional development. In an April 2013 decision, the Board denied entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318; and remanded the appellant's claim for service connection for the cause of the Veteran's death for further development. In addition to reviewing the paper claims file, the Board has surveyed the contents of the Veteran's Virtual VA file. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant and her representative when further action is required. REMAND The appellant seeks service connection for the cause of the Veteran's death, contending that his Alzheimer's type of dementia was a direct result of his combat experiences in World War II. The appellant also contends that the Veteran suffered from undiagnosed post-traumatic stress disorder (PTSD) prior to his death, which led to the development of Alzheimer's dementia and resulted in his death. His Form DD 214 reflects receipt of the Combat Infantryman Badge and the Purple Heart Medal, among other awards. The Veteran's death certificate shows that the immediate cause of death was Alzheimer's dementia, and that the approximate interval between onset and death was years. No other significant conditions are shown. At the time of the Veteran's death, service connection was in effect neither for Alzheimer's dementia nor for any psychiatric disability. Service treatment records are negative for treatment of Alzheimer's dementia or for any psychiatric disability. Post-service records in the claims file, dated in August 1963, reflect that the Veteran was referred to a student mental hygiene clinic due to considerable dissention in his home. The Veteran reported at the time that he was divorced, lived with the parents, and had a six-year-old child. He reportedly felt obliged and resentful. The diagnosis at that time was anxiety neurosis. More recent records reflect that, prior to his death, the Veteran was hospitalized from February 2007 to March 2007; and was diagnosed with acute delirium, secondary to dehydration, in addition to underlying dementia from Alzheimer's. Records, dated in May 2008, show that the Veteran's confusion had increased, since he had been in the hospital. In June 2008, a nurse noted that the Veteran was talking about World War II; being in a fox hole; and about things that happened to him there. The nurse also noted that, while staff explained what was about to be done prior to rendering care, the Veteran became startled and jumped when given any care. Records reflect that an anti-anxiety medication was provided to the Veteran. An Axis I diagnosis of depressive disorder, not otherwise specified, was rendered in July 2008. Records show that the Veteran again was hospitalized in August 2008 for complaints of rectal bleeding. Diagnoses at that time included dementia and psychosis, in addition to acute lower gastrointestinal bleed secondary to diverticulosis. The Veteran expired in December 2008. The United States Court of Appeals for Veterans Claims (Court) held that a claim for service connection for a psychiatric disability encompasses all psychiatric symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Board must broadly construe claims, and consider other diagnoses for service connection and for the cause of the Veteran's death when the medical record so reflects. Id. Where there is a reasonable possibility that a current condition or a cause of death is related to or is the residual of a condition or injury experienced in service, VA should seek a medical opinion as to whether the claimed current disability or a cause of death is in any way related to the condition or injury experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). Under these circumstances, the RO or AMC should obtain a medical opinion regarding a nexus, if any, between service or service-connected disabilities and the cause of death. In this regard, the Board notes that there is currently no medical opinion, fully based on consideration of the Veteran's entire documented medical history, that explicitly addresses such a relationship. See 38 U.S.C.A. § 5103A. 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. Refer the claims file, and a copy of this remand to an appropriate clinician to determine: (a) Whether it is at least as likely as not (50 percent probability or more) that the Alzheimer's dementia which caused the Veteran's death had its clinical onset in service or is the result of his combat experiences in World War II; or is otherwise related to his active duty. Please provide a complete explanation for the opinion. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected residuals of gunshot wound of right shoulder; residuals of gunshot wound of left shoulder; scar residuals of shoulder wounds and thoracic spine; and residuals of gunshot wound of upper lip, substantially contributed or materially contributed to the cause of the Veteran's death. Please provide a complete explanation for the opinion. (c) Whether it is at least as likely as not (50 percent probability or more) that a psychiatric disability, to include PTSD and anxiety and a depressive disorder, had its clinical onset in service or is the result of his combat experiences in World War II, or is otherwise related to his active duty; and if so, is the probability 50 percent or greater that a psychiatric disability, to include PTSD and anxiety and a depressive disorder, contributed substantially or materially to the cause of the Veteran's death? Please provide a complete explanation for the opinion. The clinician is asked to explain fully the reasons behind any opinions offered. The clinician is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the clinician's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a copy of this REMAND, must be accessible to the clinician designated to provide the opinion(s); and the opinion(s) should note review of the file. 2. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. No action is required of the appellant and her representative until they are notified by the RO or AMC. 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).