Citation Nr: 1332364 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 04-41 482A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1944 to April 1946. He died in November 2003. The appellant is the surviving spouse of the Veteran, and is seeking entitlement to service connection for the cause of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, denied entitlement to service connection for the cause of death. The RO in Phoenix, Arizona, currently retains jurisdiction of the appellant's claim. A hearing was held at the RO in September 2005 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this matter was initially before the Board in May 2006, the Board denied the claim of entitlement to service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in an August 2008 Memorandum Decision and September 2008 Judgment, vacated the Board's May 2006 decision and remanded the case for compliance with the terms of the Memorandum Decision. As directed by the Memorandum Decision, in December 2009 the Board remanded the appellant's claim for additional development. As the development ordered by the December 2009 Board remand was not fully accomplished, in June 2010 the Board again remanded the appellant's claim for additional development. In December 2010, the Board again denied the appellant's claim. The appellant appealed the Board's decision to the Court which, in a July 2012 Memorandum Decision and Judgment, vacated the Board's December 2010 decision and remanded the case for compliance with the terms of the Memorandum Decision. 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 In October 2013, the appellant's representative submitted a private physician's opinion dated in May 2013 addressing the appellant's claim. The Board may not consider evidence in the first instance without a waiver from the appellant or her representative. 38 C.F.R. § 20.1304(c) (2013). As neither the appellant nor her representative provided such a waiver, this evidence must be considered by the RO before the Board may consider it. The Court's memorandum decision determined that the Board erroneously relied on a July 2010 VA physician's opinion that did not fully address the questions posed to him in the Board's June 2010 remand and that failed to adequately discuss VA studies linking PTSD to heart problems. The Court found that another opinion was warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion from a cardiologist or other appropriate physician (not a psychologist or social worker) as to whether it is at least as likely as not that the Veteran's service-connected PTSD disability caused, or contributed substantially or materially to, the cause of death. The certificate of death notes that the immediate cause of the Veteran's death was cardiac failure, and that severe cardio-myopathy and multiple MIs were underlying causes which lead to cardiac failure. The claim folder must be made available to the examiner for review in conjunction with the examination. A detailed rationale for all medical opinions must be provided. The examiner must specifically provide an opinion on 1) whether it is at least as likely as not that the Veteran's service-connected PTSD disability caused the Veteran's death, and 2) whether it is at least as likely as not that the Veteran's service-connected PTSD disability contributed substantially or materially to, the cause of death. The examiner must specifically address and comment on the significance, if any, on the October 2010 VA article and 2003 VA study submitted by the appellant that concluded that there was a positive relationship between cardiovascular disease and PTSD. The examiner must also specifically address and comment on the significance, if any, of the April 1998 and March 2004 private medical letters of record, which respectively indicate that the Veteran suffered from anxiety since service and that the Veteran's cause of death, cardiomyopathy, "is often the result of occupational related stress." The examiner is to comment on a December 2002 VA examination report noting that the Veteran had a coronary artery bypass in 1984, and that his health has deteriorated since a heart attack in September 2002. Finally, the examiner is to comment on the May 2013 private physician's opinion that it was at least as likely as not that the Veteran's PTSD had both a direct effect, and an indirect one through hypertension, on the development of his cardiovascular disease, ischemic cardiomyopathy, and eventual demise. 2. Then, readjudicate the claim, with specific consideration of evidence submitted since the most recent Supplemental Statement of the Case. If the claim remains denied, issue a Supplemental Statement of the Case and return the case to the Board. 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). _________________________________________________ RONALD W. SCHOLZ 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).