Citation Nr: 1327735 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-28 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robin M. Webb, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from August 1971 to March 1973, and from February 1974 to November 1974. The Veteran died in April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. This matter was before the Board in February 2011 when it was remanded for additional development. In June 2012, the Board issued a decision that denied the appellant's claim of service connection for the cause of the Veteran's death. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the Court vacated the June 2012 Board decision, and remanded the matter to the Board for further action consistent with a Joint Motion for Remand (Joint Motion) by the parties. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that the record shows that the Veteran was treated for viral hepatitis in service in February 1973. His death certificate identifies his immediate cause of death as myocardial failure, due to, or as a consequence of coronary insufficiency, due to, or as a consequence of arteriosclerotic heart disease. Congestive heart failure and hepatitis C were listed as other significant conditions contributing to death, but not related to the immediate cause of death of myocardial failure. In the Board's February 2011 remand, it was noted that the July 2009 VA opinion (seeking to determine whether the hepatitis in service was related to the hepatitis noted on the death certificate) was confusing as the examiner did not make any distinction between the various forms of hepatitis, and incorrectly stated that the Veteran's death certificate does not indicate that hepatitis C had anything to do with the Veteran's death and is listed only as other significant condition. Consequently, the Board sought another opinion to address and explain whether the hepatitis C noted on the Veteran's death certificate was in any way related to the "[h]epatitis, viral, Hepatitis B Antigen negative" diagnosed in a March 1973 service treatment clinical record. Such opinion was provided in March 2011. Significantly, the March 2011 examiner noted that although the claims file was reviewed, the actual death certificate could not be located, but was noted in the prior July 2009 VA opinion. In light of the Board's finding in the February 2011 remand that the July 2009 VA physician's opinion was confusing, and the March 2011 VA physician's reliance on the July 2009 VA physician's findings as to the death certificate (which she did not review), the Joint Motion found that such suggests the March 2011 VA physician's opinion may be based on inaccurate facts. In addition, the Joint Motion noted that the March 2011 VA physician's opinion appeared to have been based on an incomplete review of the record as post-service evidence appears to contain information reflecting diagnoses of and symptoms associated with hepatitis C. In this regard, the Board notes that review of the evidence of record does reflect post-service diagnoses of hepatitis C in June 2003 and January 2007 VA treatment records. The Joint Motion instructed that a remand was necessary for a new opinion regarding whether the hepatitis in service was related to the hepatitis noted on the Veteran's death certificate. In light of the foregoing, the Board finds that further clarification should be sought in this matter in compliance with the instructions of the Joint Motion. Accordingly, the case is REMANDED for the following action: 1. The claims file should be provided to the physician who offered the March 2011 opinion, or other qualified individual, for a follow-up opinion that addresses and explains whether the hepatitis C noted on the Veteran's death certificate was in any way related to the "[h]epatitis, viral, Hepatitis B Antigen negative" diagnosed in a March 1973 service treatment clinical record. In doing so, the reviewer should indicate whether there are any post-service findings (e.g., abnormal liver function studies or symptomatology) that may be related to the diagnosis in service. If the two are related, an opinion should be offered as to whether these related illnesses may be considered to have substantially and materially contributed to the Veteran's death. [The death certificate lists hepatitis C as a condition contributing to death but not related to the immediate cause of death of myocardial failure.] The reviewer's report should include a complete rationale for all opinions and conclusions reached, with specific references to the Veteran's claims file. If an opinion cannot be provided without resort to mere speculation, the reviewer must state this and must explain why the opinion cannot be provided without resort to mere speculation, noting whether there are facts missing that prevent anything other than speculation, or whether the limits of medical knowledge have been reached. If a non-speculative opinion is precluded by the absence of certain facts, the nature of those facts should be indicated. 2. Thereafter, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).