Citation Nr: 1329843 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-07 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to compensation for malignant melanoma, including status post mole removal and multiple brain lesions, under the provisions of 38 U.S.C.A. § 1151 for accrued benefits purposes. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to August 1962. He died in September 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that there were several accrued benefits claims pending at the time of the Veteran's death and that the appellant was given broad notice of the denial of any accrued benefits claims in the February 2009 rating decision and notice letter. Because her notice of disagreement solely identified disagreement with the denial of compensation for malignant melanoma under 38 U.S.C.A. § 1151, the Board's jurisdiction is limited to this accrued benefits claim. Moreover, inasmuch as the appellant did not perfect an appeal with regard to entitlement to service connection for cause of the Veteran's death, death pension benefits, or entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318, the remaining appellate issue is limited solely to entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. In her February 2010 substantive appeal, the appellant requested a hearing before a Veterans Law Judge by live videoconference. However, in June 2010, the appellant withdrew her hearing request. 38 C.F.R. § 20.704(e) (2012). 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 Although any further delay is regrettable, the Board finds that a remand is necessary for additional development. The Federal Circuit has provided that 38 U.S.C.A. § 5103A(a), and not (d), applies to dependency and indemnity compensation (DIC) claims. Section 5103A(a) indicates that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Section 5103A(a) "only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C.A. § 5103A(a)) (citations omitted). After carefully considering the evidence of record, the Board finds that an additional VA medical opinion is needed to ascertain the relationship, if any, between either the Veteran's malignant melanoma, including status post mole removal and multiple brain lesions, or his death and the VA treatment he received. The Board acknowledges that a VA opinion was obtained in February 2009 to ascertain whether hospital care or medical treatment he received from VA may have caused any additional disability or death. However, this opinion is inadequate. Of note, the examiner explained that because there was no specific information available to her from the Minneapolis VA Medical Center (VAMC), her opinion was based solely on the medical literature and "not any prognostic information specific to this patient." Also significant, the examiner explained that no opinion could be provided as to whether additional testing beyond annual history and physical should have been performed by VA because the examiner did "not have access to the patient's disease stage." Further, the examiner appeared to indicate that the standard of care may have been met if the Minneapolis VAMC was performing lymph node examinations, but, again, these records were unavailable for review. In any event, the examiner admitted that she did not have the expertise to know if the Veteran would have been a candidate for resection, nor could she state whether his death could have been prevented, or his survival prolonged, if neurological imaging had been performed in 2005. A review of the record reflects that additional treatment records from the Minneapolis VAMC were obtained by the RO subsequent to the February 2009 opinion. However, no addendum was sought. Thus, this pertinent evidence must be reviewed in conjunction with a new opinion. Moreover, given the examiner's admission that she did not have the particular expertise to offer an opinion on the Veteran's candidacy for a resection or the ability to given an opinion on whether neurological imaging could have prevented or prolonged the Veteran's death, a new VA examination should be conducted by a VA medical professional who is qualified to answer these questions-in this case, a neurosurgeon, and possibly also an oncologist if deemed necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, although Minneapolis VAMC treatment records from June 2003 through June 2008 were obtained, a March 2003 VA treatment record from the St. Could VAMC indicated that the Veteran had previously been seen though Minneapolis VAMC. Therefore, records prior to June 2003 need to be obtained on remand. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (indicating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). Lastly, of record is a January 2004 letter from the Minnesota Department of Employment and Economic Development, which indicates that the Veteran had applied for disability benefits in part due to "melanoma skin cancer." As this facility may have developed or obtained information pertinent to the current appeal, this information should also be obtained on remand. If necessary, the appellant should be asked to provide an authorization and consent form for the release of these records. 38 C.F.R. § 3.159(e)(2). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records relevant to the remanded claims from the Minneapolis VAMC prior to June 2003. 2. With any needed assistance from the appellant, obtain and associate with the claims file records from the Minnesota Department of Employment and Economic Development. 3. After accomplishing steps (1) and (2) above, obtain an addendum opinion from a neurosurgeon or otherqualified physician regarding the hospital care or medical treatment the Veteran received from VA. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner. The examiner is requested to provide an opinion as to the following: (a) Whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA's part in furnishing hospital care or medical treatment to the appellant after diagnosing the Veteran's malignant melanoma in 2003. In answering this inquiry, the VA examiner is requested to discuss the standard of care involved in monitoring a patient who has been previously diagnosed with malignant melanoma, including whether lymph node examinations and/or neurological imaging testing is appropriate; (b) Whether there was any failure to timely diagnose and properly treat the malignant melanoma; (c) Whether the Veteran's malignant melanoma, including status post mole removal and multiple brain lesions, was proximately caused by (1) any carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault by VA or (2) an event not reasonably foreseeable; and (d) Whether the Veteran's death, was proximately caused by (1) any carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault by VA or (2) an event not reasonably foreseeable. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, readjudicate the claims for entitlement to compensation for malignant melanoma, including status post mole removal and multiple brain lesions, under the provisions of 38 U.S.C.A. § 1151 for accrued benefits purposes, and entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond. 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 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). _________________________________________________ WAYNE M. BRAEUER 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).