Citation Nr: 1331985 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-32 322 ) 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. (The issue of whether there was clear and unmistakable error in an August 2011 Board decision that denied entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1318 will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant, Dr. LC, and EDLC ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from August 1946 to May 1949. He died in January 1987, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Manila, the Republic of the Philippines. In August 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In April 2011, the appellant, Dr. LC, and ED testified at hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. Since the last adjudication of the appeal, the appellant has submitted additional medical evidence; she has waived agency of original jurisdiction (AOJ) consideration of this evidence. See 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such evidence in rendering its decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 appellant contends that the Veteran's service-connected disabilities contributed to his death. She has submitted medical evidence, written and testimonial, from Dr. LC that the service-connected disabilities were so debilitating that the Veteran was immunologically compromised, which impaired his ability to fight off a tuberculosis infection. In August 2011, the Board remanded the appeal so that a VA opinion could be obtained as to whether the Veteran's pulmonary tuberculosis was related to his service-connected disabilities and, in particular whether the service-connected disabilities contributed substantially to or aided in the production of death. In this regard, the examiner was to opine as to whether it is at least as likely as not that the service-connected disabilities, singly or in combination, caused debilitation such that the Veteran's propensity to incur tuberculosis was increased. A rationale for all opinions offered was to be provided. The opinion was received in October 2011. The examiner offered a thorough analysis of the Veteran's history of tuberculosis infection, first noted in 1965 and left untreated until his death in 1987. She then opined that the Veteran's death was secondary to the delay in treatment for his pulmonary tuberculosis and not to the weakened immune state of the Veteran as a result of his service-connected disabilities due to an in-service vehicular accident. The examiner concluded that it is therefore less likely as not that the Veteran's fatal pulmonary tuberculosis was related to his service-connected disabilities, nor that the Veteran's service-connected disabilities contributed substantially to his death. However, she provided no rationale for this opinion. Therefore, the opinion is not compliant with the Board's August 2011 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Board notes that among the additional evidence submitted by the appellant, is medical literature that discusses the role of immunity and various environmental factors in the contraction of tuberculosis that should be considered by an examiner in rendering the opinion. For these reasons, the Board remands the appeal so that another opinion on the cause of the Veteran's death may be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be forwarded to the October 2011 VA examiner, or to another equally qualified examiner, for review and an opinion as to whether it is at least as likely as not that the Veteran's fatal pulmonary tuberculosis was related to his service-connected disabilities. Once a review of the claims file has occurred, the examiner should address the following: a. Is it at least as likely as not that the Veteran's service-connected disabilities contributed substantially to the Veteran's death or aided or lent assistance to the production of death. b. Is it at least as likely as not that the service-connected disabilities, singly or in combination, caused debilitation such that the Veteran's propensity to incur tuberculosis was increased? The multiple statements by Dr. LC, as well as the medical literature of record, that discuss the possible role of a diminished immune system in the Veteran's contraction of tuberculosis should be considered and specifically addressed. A complete rationale for any opinion offered must be provided. 2. After completing the above action, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the appellant and her attorney, and return the appeal to the Board for appellate review, after the appellant has had an adequate opportunity to respond. 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). _________________________________________________ U. R. POWELL 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).