Citation Nr: 1330152 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-15 196A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from February 1957 to December 1967. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. 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 The Board finds that VA has not satisfied its duty to assist. In a June 2007 statement, the appellant stated that the Veteran had medical care through the VA Hospital in Gainesville, Florida, and requested that VA obtain the records. At the June 2013 hearing, the appellant testified that the Veteran was treated in 1980. See June 2013 hearing transcript (Tr.) at 4. In September 2009, the RO searched CAPRI, the electronic VA records system, for progress notes for the Veteran. However, as the Veteran was treated prior to February 1982, there would not have been any electronic records available from that time period. There is no indication that the RO attempted to obtain the VA treatment records from Gainesville Medical Center from prior to February 1982, as the appellant requested. VA has a duty to obtain VA treatment records. Thus, the claim must be remanded to obtain the Veteran's VA treatment records from Gainesville VA Medical Center from prior to the Veteran's death in February 1982. The Board also finds that the appellant was not provided with notice in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). Although the appellant was sent a notice letter in June 2007, it did not inform her that the Veteran was not service-connected for any disabilities at the time of his death. Thus, a new notice letter should be issued in compliance with Hupp. Generally, in a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." See De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); 38 U.S.C.A. § 5103A(a). The Veteran's death certificate reflects that he died in February 1982 from septic shock- Waterhouse-Friderichsen Syndrome, due to or as a consequence of meningococcal septicemia. An autopsy report noted that the Veteran had disseminated intravascular coagulation and arteriosclerosis of the anterior descending branch of the left coronary artery with luminal narrowing. A death summary stated that, "[i]t was apparent that this man, by drinking and smoking had abuse[d] himself and with the lack of the white blood cell count response, indicating a low immune reaction." In a June 2009 opinion, a private physician opined that the Veteran met the DSM-IV criteria for chronic posttraumatic stress disorder (PTSD). He also opined that the PTSD resulted from traumatic events experienced while in service and that the Veteran's alcoholism at least as likely as not was a result of efforts to "self-medicate" the symptoms of his PTSD. The physician stated that "it is my professional opinion that it is highly likely that [the Veteran's] chronic mental instability, severe insomnia and alcoholism secondary to his chronic PTSD led to his poor immune status and were significant contributing factors to his septic shock consistent with Neisseria meningitidis, the ultimate cause of his death . . ." As the physician's statement indicates the Veteran's death may have been related to service, the Board finds that a VA opinion is necessary to determine whether the Veteran's death was related to service. Although the Veteran's VA treatment records indicate the Veteran served in Vietnam, his service personnel records should also be obtained to verify the circumstances of his service. At the June 2013 Board hearing, the appellant's representative also asserted that the Veteran's death was related to his service in Vietnam, as the autopsy report indicated he had atherosclerosis of the coronary artery and enlargement of the heart. See Tr. at 2-3. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides. If a Veteran was exposed to an herbicide agent during active service, ischemic heart disease is presumptively service-connected. 38 C.F.R. § 3.309(e) (2013). As the Veteran's autopsy report indicated he had heart problems and he was exposed to herbicides, a VA opinion should be obtained as to whether his cause of death was related to ischemic heart disease. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a notice letter in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007), including notice of the fact that the Veteran was not service-connected for any disabilities and of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. 2. Request the Veteran's VA treatment records from the Gainesville VA Medical Center from prior to the Veteran's death in February 1982, including records from 1980. If no records are available, the claims folder must indicate this fact. 3. Request the Veteran's service personnel records. If no records are available, the claims folder must indicate this fact. 4. After any records obtained have been associated with the claims file, forward the claims file to an examiner(s) of appropriate expertise for review and request that the examiner(s) provide the following opinions: (1) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran had PTSD that was incurred or aggravated by active service. (b) If the Veteran had PTSD that was related to service, whether it is at least as likely as not (50 percent or greater probability) that the PTSD caused or contributed substantially or materially to his death. (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran had ischemic heart disease. (d) If the Veteran had ischemic heart disease, whether it is at least as likely as not (50 percent or greater probability) that the ischemic heart disease caused or contributed to his death. The VA clinician is requested to provide a thorough rationale for any opinion provided. The VA clinician should review the June 2009 private opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. Thereafter, readjudicate the issue on appeal of entitlement to service connection for the Veteran's cause of death. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ MILO H. HAWLEY 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) (2013).