Citation Nr: 1331907 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 12-29 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and J. O. ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to February 1970, and from January 1976 to May 1984. The Veteran died in October 2009 and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky dated in August 2010. The appellant and J. O. testified at a videoconference hearing before the undersigned Veterans Law Judge. With respect to accrued benefits, it is noted that the RO issued a rating decision on October 25, 2009, shortly prior to the Veteran's death. Although the Veteran did not file a notice of disagreement, those claims remained pending at the time of the Veteran's death as the one-year period to appeal the decision had not expired at the time of the Veteran's death. See Taylor v. Nicholson, 21 Vet. App. 126 (2007). The Board does not have jurisdiction over these issues as they have not been the subject of a notice of disagreement, thus, they are referred to the RO for appropriate action. As additional development is necessary, the issue of entitlement to service connection for the cause of the Veteran's death 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 appellant seeks service connection for the cause of the Veteran's death. The Veteran died in October 2009, and his Certificate of Death lists the immediate cause of death as possible pulmonary embolism. During his lifetime, service connection had been established for PTSD, rated as 100 percent disabling; dermatitis, rated as 30 percent disabling; right calcaneal spur rated as 10 percent disabling; and residuals of punji stick wound, muscle group X, and nerve damage, right foot, rated as 10 percent disabling. Appellant has provided argument and medical opinion evidence in support of her theory that the Veteran's severe, service-connected right foot and leg disabilities combined to cause him to suffer a documented fall and left shoulder injury in October 2009. She further asserts that the fall and left shoulder injury caused the possible pulmonary embolism which led to his death the following day. The Veteran fell getting out of bed late one evening in October 2009, resulting in a type III AC shoulder separation. His visit to C.M.P., M.D. the next day reflects that he initially reported he felt a bit dizzy and fell. Appellant has presented medical opinion evidence from C.M.P., M.D. This physician opined in April 2011, after having been told by the Veteran's daughter that the Veteran had right foot and leg service-connected problems, including gout, that his fall was in fact likely due to these problems. He explained that he found now that the dizziness was a more minor reason. Thus, he concluded that the pulmonary embolism that caused death was likely due to the right leg and foot problems. He reiterated his support of this theory in an October 2012 statement. The appellant urged in her June 2011 notice of disagreement that the Veteran had treatment at a VA hospital just days prior to his death. Due to excessive walking during that treatment, he had an acute attack of gout in both lower extremities. Due to extensive and aggravated pain in his right foot, he became unsteady getting out of bed and fell the morning before his death, resulting in the left shoulder separation. VA treatment records show treatment only through September 15, 2009, several weeks prior to the Veteran's death. Thus, it appears that appellant is referring to additional pertinent treatment that is not documented in record. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. These records are relevant and should be obtained prior to the Board's review of the claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain VA medical records pertaining to the Veteran dating from September 15, 2009, to the date of his death. 2. The RO/AMC should ensure the completion of the above and complete any other development deemed to be necessary, then readjudicate the claim. If any of the benefits on appeal remain denied, provide a supplemental statement of the case to the appellant and her representative and provide a reasonable period for response. Thereafter, if otherwise in order, return the Veteran's VA claims folder to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ S. S. TOTH 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).