Citation Nr: 1329974 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-09 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran had recognized active service from September 1944 to November 1945. He died in April 1993, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Manila, Regional Office (RO). In August 2009, the Board issued a decision which determined that new and material evidence had not been presented to reopen the appellant's claim for service connection for the cause of the Veteran's death. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), resulting in a Joint Motion for Remand (Joint Motion) by the parties. The Court, in an October 2010 Order, remanded the matter for compliance with the instructions in the Joint Motion, which called for the Board's decision to be vacated and the case remanded to the Board. In July 2011, the Board issued another decision, determining that new and material evidence had not been presented to reopen the appellant's claim for service connection for the cause of the Veteran's death. The appellant appealed that decision to the Court. The Court, in a January 2012 Order, granted a Joint Motion for Remand by the parties, and vacated the Board's decision and remanded the case to the Board for readjudication consistent with the Joint Motion. Then, in a February 2013 decision, the Board determined that new and material evidence had been received to reopen the claim of service connection for the cause of the Veteran's death, thus reopening the claim; the Board also remanded the case to the RO for additional development to include obtaining a medical opinion and for adjudication of the claim on a de novo basis. The case was thereafter returned to the Board for its consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded the case to the RO in February 2013 in order to obtain an advisory medical opinion regarding the cause of the Veteran's death. In February 2013, a VA physician reviewed the claims file and furnished an opinion that is inadequate and requires clarification. The Veteran's death certificate indicates that his cause of death in April 1993 was septicemia secondary to generalized peritonitis secondary to intestinal obstruction with adhesion and anastomotic leak. In the medical opinion, the VA physician found that it was at least as likely as not that the Veteran's suffered from ulcer disease during service, which continued after service until he underwent stomach surgery in 1954. He stated that "any history of previous intra-abdominal surgery can cause peritoneal adhesions and subsequent intestinal obstruction but not anastomotic leak." He asserted that establishing the cause of the anastomotic leak was "vital" to the query (which he was unable to do on account of the need for additional facts and records after the ulcer treatment surgery in 1954), and explained how leakage of intestinal contents with resulting peritonitis and septicemia ultimately led to the Veteran's demise. Notably, the physician did not discuss the likelihood that any peritoneal adhesions or intestinal obstruction from the surgery in 1954 was a direct or contributory cause of the Veteran's death in 1993, despite those conditions being possible residuals of the 1954 surgery and specifically listed as causes on the death certificate. In an addendum opinion, the physician should address whether any peritoneal adhesions and intestinal obstruction from the 1954 stomach surgery are likely related to one of the causes listed on the Veteran's death certificate. As suggested by the appellant's representative in an August 2013 letter, the Veteran may have suffered from adhesions and abdominal obstruction due to the surgery that made him more "susceptible" to the anastomotic leak that caused his death. As previously noted, the physician indicated that an opinion, regarding whether the fatal anastomotic leak was related back to the ulcer treatment surgery in 1954, would be speculative in the absence of additional documentation after the surgery (e.g., hospital confinement, operative record, or autopsy report). The appellant should be apprised that the evidentiary record is deficient and additional facts and records are needed for a complete, accurate medical opinion. 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. Apprise the appellant that the evidentiary record is deficient and that any additional facts and records pertaining to the Veteran's gastrointestinal condition from the period of his surgery in 1954 until his death in 1993 would aid in substantiating her claim for service connection for the cause of the Veteran's death. Such documentation may consist of any hospital confinements, operative records, and an autopsy report. 2. After the above development is completed, arrange to have the claims file reviewed by the VA physician who provided the March 2013 advisory medical opinion, if available, or another VA physician if that provider is not available, to furnish an addendum opinion, with rationale that takes into account the significant facts in the record, as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cause of death is related to the ulcer disease during service that necessitated stomach surgery in 1954. The physician should specifically discuss the likelihood that the Veteran developed peritoneal adhesions and intestinal obstruction from the surgery, and whether any such development was a direct or contributory cause of the Veteran's death (e.g., did any adhesions and intestinal obstruction make the Veteran more "susceptible" to the anastomotic leak that caused his death?). In providing an opinion, the physician is asked to consider, and comment upon as necessary, that the Veteran's death certificate includes intestinal obstruction with adhesion as a cause of death, along with the other conditions of septicemia, generalized peritonitis, and anastomotic leak, and that the appellant asserts that the Veteran suffered from an illness manifested by stomach pains for the entirety of their marriage (1948 until his death in 1993). The physician should consider that the appellant is competent to describe her observations of the Veteran's gastrointestinal symptoms. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against causation is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the physician is unable to provide the requested opinion without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), or by a deficiency in the record (i.e., additional facts are required), or the provider does not have the needed knowledge or training. The VA examiner is provided the following guidance: A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 3. After the completion of the above development, adjudicate the claim of service connection for the cause of the Veteran's death. If it remains denied, furnish the appellant and her attorney a supplemental statement of the case, afford them opportunity to respond, and return the case to the Board. 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 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). _________________________________________________ George R. Senyk 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2013).