Citation Nr: 1328129 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-29 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits at the service-connected rate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. He died in May 2007. The Appellant is the Veteran's widow. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2007 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the benefits sought on appeal. In February 2011, the Appellant presented testimony at a personal hearing conducted at the North Little Rock RO before the undersigned. A transcript of this personal hearing is in the claims folder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action on her part is required. REMAND Before a decision can be reached on these matters, a remand is necessary for further development. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD) evaluated at 100 percent disabling since September 5, 2001; hypertension evaluated at 20 percent disabling since November 20, 1995; and scars, residuals shell fragment wounds of the maxilla and mandible, evaluated as noncompensable since February 12, 1980. The Appellant contends that the Veteran's cause of death is related to his service-connected hypertension. The Appellant appears to assert that the Veteran's service-connected hypertension caused him to have a stroke and/or heart attack and/or congestive heart failure that contributed to his death. The certificate of death reflects that the Veteran's immediate cause of death was metastatic carcinoma of the colon. Other significant conditions contributing to his death but not resulting in the underlying cause were jaundice, anemia, and what appears to read "leukocytosis." The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The Board concludes that a remand for another VA opinion is necessary. The Board observes that there is a May 2010 VA opinion of record indicating that it is less likely than not that the Veteran's hypertension contributed in any significant way to his demise. However, after the opinion was provided, relevant evidence was associated with the claims file. Accordingly, a remand for a VA opinion which considers this relevant evidence is necessary. See 38 C.F.R. §§ 3.159(c)(4), 3.312(c)(3); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that there are four opinions from VA providers M.L. Hearndon, D.O. and Dr. A.M. Safar, submitted by the Appellant, suggesting a positive relationship between the Veteran's service and his cause of death. However, all of the opinions are inadequate upon which to base a determination. These providers indicate that the Veteran's service-connected hypertension is related to his subsequent diagnoses of stroke, heart attack, and congestive heart failure that in turn contributed to his cause of death, metastatic carcinoma of the colon. Although their opinions might suggest that the Veteran's hypertension involved active processes which affected his vital organs, which resulted in debilitating effects and general impairment of his health to the extent his hypertension rendered him less capable of resisting the effects of his metastatic colon cancer, the relationship between his service-connected hypertension and diagnoses of stroke, heart attack, and congestive heart failure, all of which he is not service-connected for, has not been adequately explained. Moreover, there is no diagnosis of congestive heart failure currently of record. Additionally, in a September 2007 statement, the Appellant reported that the Veteran received treatment in connection with the claim for service connection for the cause of the Veteran's death at two VA facilities. In particular, she stated that he was treated for cancer from 2003 to his death at the John L. McClellan VA facility and for a stroke in February 2007 at the Eugene J. Towbin VA facility. Although some records from these facilities have been associated with the claims file, the complete records have not. Also, in a November 2008 opinion, VA provider M.L. Hearndon referenced private medical records from St. Mary's that he reviewed dating from 2004 to the Veteran's death. These records have not been associated with the claims file. As the aforementioned records have been identified by the record and are potentially relevant to the claim for cause of death, a remand is necessary to obtain them. See 38 C.F.R. § 3.159(c)(1), (2) (2012). Furthermore, the Appellant did not receive notice that is in compliance with Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Accordingly, on remand, the Appellant should receive notice that is in full compliance. With regard to the claim for burial benefits to be paid at the service-connected rate, this issue is "inextricably intertwined" with the issue of the cause of the Veteran's death. Therefore, this issue must be remanded to the RO in accordance with the holding in Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following actions: 1. Provide the Appellant with a notice letter that complies with Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), to include: (1) a statement of the conditions for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. 2. Obtain VA treatment records from the John L. McClellan VA facility located in Little Rock, Arkansas from 2003 to the Veteran's death in May 2007 and the Eugene J. Towbin VA facility located in North Little Rock, Arkansas dated from February 2007 to the Veteran's death in May 2007 and associate them with the claims file. 3. After securing any necessary release, obtain private treatment records from St. Mary's dated from 2004 to the Veteran's death, as referenced by M.L. Hearndon in his November 2008 opinion. 4. If any of the records requested in items 1-3 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 5. After the development in 1-4 has been completed, forward the claims file to an appropriate VA medical examiner for review. The examiner is requested to review all pertinent records associated with the claims file, and to comment as to whether it is at least as likely as not that one of the Veteran's service-connected disabilities (PTSD or hypertension) was a principal or contributory cause of his death. The Board is particularly interested in ascertaining the relationship, if any, between the service-connected hypertension and his immediate cause of death, metastatic carcinoma of the colon. The examiner should also address the relationship, if any, between the service-connected hypertension and any cardiovascular diagnosis to include stroke, heart attack, and congestive heart failure and his death. The examiner should also indicate whether it is at least as likely as not that the Veteran's metastatic carcinoma of the colon is related to his military service, to include presumed exposure to herbicides, or whether his death was otherwise causally or etiologically related to his military service. (The term "contributory cause of death" means one inherently not related to the principal cause; which contributed substantially or materially to cause death; which combined to cause death; or which aided or lent assistance to the production of death. It is not sufficient that a disorder may have casually shared in producing death, but rather there must be a causal connection.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the claims file, or in the alternative, the claims file, must be made available to the examiner for review. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. Both claims are considered inextricably intertwined and should be adjudicated accordingly. If the benefits sought are not granted, the Appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). _________________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).