Citation Nr: 1332010 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 06-12 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to a compensable rating for pulmonary tuberculosis, for the purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had Recognized Guerilla service from October 1942 to July 1945 and service in the Regular Philippine Army from July 1945 to January 1946. He died in August 2004. The appellant is the Veteran's widow. This matter initially came to the Board of Veteran's Appeals (Board) on appeal from July 2004 and August 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In July 2004, the RO denied the Veteran's claim for a compensable rating for tuberculosis and, in August 2005, it denied service connection for the cause of the Veteran's death. In September 2009 and October 2011, the Board remanded the appellant's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND In its September 2009 remand, the Board noted that, during his claim for a compensable rating for tuberculosis, the Veteran requested that the RO obtain treatment records from the Veterans' Memorial Medical Hospital (VMMC). While pages of some treatment records, dated between August 1988 and July 2004, were associated with the file, it appeared that his VMMC treatment records were incomplete. The Board directed the AMC/RO to determine if there were any outstanding pertinent VMMC records and, if so, to obtain them. This was not accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2011, the Board remanded the appellant's claim again and directed the RO to determine if there were any outstanding treatment records from the VMMC and, if so, to obtain them. In a December 2011 letter to the appellant (that was resent to her in December 2012), the RO requested that she state if the Veteran had outstanding treatment records from the VMMC not submitted to that office. She was advised that she could submit signed authorization for release of the VMMC records. The appellant did not respond to the RO's inquiry. However, in April 2004, the appellant provided a signed and witnessed authorization for release of the Veteran's records from the Veterans Memorial Medical Hospital. As that authorization is no longer valid due to lapse of time, she should be afforded one more opportunity to enable the release of such documents to VA in furtherance of her claim. Further, the appellant seeks service connection for the cause of the Veteran's death. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the immediate or underlying cause. A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially to death; that it combined to cause death; or 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. 38 C.F.R. § 3.312(c)(l). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). The Veteran died in August 2004, at the age of 83. The death certificate lists the immediate cause of death as cardio respiratory arrest and the antecedent cause as status post cerebrovascular accident. At the time of his death, service connection was in effect for pulmonary tuberculosis, moderately advanced, inactive. The evidence on file, while not sufficent to grant service connection, does trigger VA's duty to assist the appellant in obtaining a VA medical opinion that addresses the cause of the Veteran's death. See e.g., McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012), 38 C.F.R. § 3.159(c)(4)(i) (2013). Thus, a medical opinion is warranted in this case. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she provide authorization for the release of records from the Veterans Memorial Medical Hospital. If such release is provided, the records should be obtained. Any negative search response should be noted in the record and communicated to the appellant. 2. Following the completion of the above to the extent possible, the Veteran's claims file should be reviewed by a VA pulmonologist for a medical opinion concerning the cause of the Veteran's death. The examiner is requested to respond to the following question: is it at least as likely as not that the Veteran's service-connected moderately advanced tuberculosis, inactive, caused or contributed substantially or materially to his death? A complete rationale should be provided for all opinions rendered. 3. Thereafter, readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2013). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals 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. 2013).