Citation Nr: 1332234 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-30 934 ) 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. WITNESSES AT HEARING ON APPEAL Appellant, SL, and NA ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had recognized service with the Philippine Commonwealth Army from December 1941 to May 1946; he was a prisoner of war from April 1942 to September 1942. He died in November 2002. The appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Manila, the Republic of the Philippines regional office (RO) of the Department of Veterans Affairs (VA). In July 2011, the Board reopened the issue on appeal and remanded the case to the RO for additional development. It was remanded again in January 2013 for an additional nexus opinion that addressed the private medical evidence and the appellant's contentions in favor of the claim. A subsequent opinion was obtained by VA in April 2013 and added to the claims file. The appellant testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in April 2011, and a transcript of the hearing is of record. Please note 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran died from cardiorespiratory arrest due to respiratory failure as a result of severe chronic obstructive pulmonary disease (COPD). At the time of his death, he was assigned a 60 percent rating for arteriosclerotic heart disease (ASHD). As noted above, this case was remanded by the Board in January 2013 to the RO for an additional nexus opinion that addressed the appellant's contentions and the private medical evidence in favor of the claim. Although the opinion obtained by VA in April 2013 concluded that the Veteran's asthma, respiratory failure, and death due to COPD were less likely than not incurred in or related to his military service, to include while a POW, this opinion also noted that uncontrolled asthma can lead to COPD. Although Dr. S. M. Langoey testified at the hearing in April 2011 that the Veteran's service-connected ASHD aggravated his asthma, he did not provide a rationale for this opinion. Moreover, the January 2013 opinion does not address the question of whether the Veteran's service-connected heart disease aggravated his asthma to the extent that it contributed substantially or materially to the cause of death from COPD. Consequently, the Board concludes that additional development is warranted in this case prior to Board adjudication. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. The AMC/RO will send the appellant an appropriate notice letter. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter must include (1) a statement of the condition for which the Veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the DIC claim based on the Veteran's previously service-connected disorder, and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service-connected. 2. The AMC/RO will send the claims file to the VA medical professional who provided the April 2013 opinion and ask her to again review the evidence of record and provide an additional opinion, with a clear rationale based on the evidence of record, on whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected ASHD chronically aggravated the Veteran's asthma such that it caused or contributed substantially or materially to his death from COPD. If this medical provider is unavailable, this opinion must be obtained from another appropriately qualified medical professional. The claims file, including a copy of this remand, must be made available to the reviewer/examiner in conjunction with the examination. This opinion must reflect review of pertinent material in the claims folder. A complete rationale for all opinions must be provided. The report prepared must be typed. In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The reviewer is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence or causation as to find against such matters. More likely and as likely support the contended causal relationship; less likely weighs against the claim. If the reviewer is unable to provide an opinion without resorting to speculation, he/she should explain why a definitive opinion cannot be provided. 3. Thereafter, The RO/AMC should take such additional development action as it deems proper with respect to the claim on appeal. VA should then readjudicate the issue currently on appeal. If the benefit sought on appeal remains denied, the appellant will be provided a Supplemental Statement of the Case and afforded an appropriate opportunity to respond. The case should then be returned to the Board for appellate review. 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). The RO and the appellant are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ 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 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).