Citation Nr: 1332462 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-17 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The Veteran died in August 2006. The appellant is the Veteran's surviving spouse. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp 2013); 38 C.F.R. § 20.900(c)(3) (2013). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND A longitudinal review of the record revealed that the appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death in September 2006. In a February 2007 rating decision, the RO entitlement to service connection for the cause of the Veteran's death. The appellant perfected an appeal of that decision. In July 2013, the Board remanded the appellant's claim for further evidentiary development. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5, 3.312 (2013). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause 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 the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). If the evidence shows that the veteran died of a disorder that was ultimately related to his military service, the requirements do not require a service-connected disability to be the primary cause of death, only to be "etiologically related" or "causally connected." 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The appellant and her representative have asserted that coronary artery disease (CAD), one of the listed causes of death for the Veteran, was caused or exacerbated by posttraumatic stress disorder (PTSD); a disorder they claim was incurred as a result of his active military service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of any heart, lung, renal, or psychiatric disorder. Post-service private treatment records, including multiple instances of inpatient treatment, dated from 1958 to 1996 revealed findings of multiple psychiatric disorders, to include dementia; schizophrenia; and schizophrenic reaction, catatonic, paranoid, and chronic undifferentiated type. In a September 1962 VA neuropsychiatric examination report, the examiner diagnosed schizophrenic reaction, paranoid type, in fairly good remission, with neurotic reaction, anxiety and conversion symptoms. The examiner also commented that another doctor had mentioned the Veteran's accelerated pulse. In VA psychiatric examination reports dated in July 1964, January 1966, and May 1966, examiners again diagnosed schizophrenic reaction, paranoid type, in fairly good or partial remission. Additional VA treatment records dated from 2001 to 2006 showed continued treatment for bipolar disorder, bipolar affective disorder, and hypertension. An October 2005 VA treatment record revealed a positive PTSD screening, but noted the Veteran denied any current problems. A September 2006 press release from the Michigan Department of Military and Veterans Affairs detailing combat seen by the Veteran's company on campaigns during his period of active service was associated with the claims file. Service personnel records associated with the record in August 2013 listed a military occupational specialty of Light Truck Driver, as well as reflected that the Veteran participated in campaigns in Northern France, Ardennes, Central Europe, Rhineland, and Normandy and was awarded five Bronze stars for the above campaigns. The Veteran died at the Hospice House of Mid-Michigan in August 2006. The certificate of death lists the immediate cause of death as anoxic encephalopathy due to or as a consequence of CAD. Other significant conditions contributing to death but not resulting in the underlying cause noted above were listed as renal failure and respiratory failure. An autopsy was not performed. At the time of the Veteran's death, service connection was not in effect for any disability. In an October 2013 statement, the appellant's representative reiterated assertions that the Veteran's death was the result of a mental health disorder that VA never recognized as PTSD or being connected with his combat experience during World War II. The representative cited to medical treatise evidence detailing the effects of PTSD on the heart. A review of the record reveals that further development on this matter is warranted. As an initial matter, service personnel records were associated with the record in August 2013. However, those records were clearly not considered in the supplemental statement of the case issued in September 2013. The appellant also has not submitted a waiver of RO consideration of this additional evidence. Accordingly, the RO must review the additional evidence received and issue a supplemental statement of the case. 38 C.F.R. §§ 19.31, 20.1304 (2013). The Board is also cognizant that the appellant did not respond to the RO's attempt to obtain authorization for the Veteran's final hospitalization records from Hospice House of Mid-Michigan. However, an additional attempt to obtain records from the Hospice House of Mid-Michigan must be made. 38 C.F.R. §§ 3.159(c)(1) (2013). Finally, in light of the cumulative record discussed above, the Board will obtain a VA medical opinion to clarify the etiology of the Veteran's cause of death. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp 2013); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Accordingly, the case is remanded for the following actions: 1. The RO must contact the appellant and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim for entitlement to service connection for the cause of the Veteran's death. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of her response, the RO must obtain all outstanding records relevant to the claim being remanded, to include private treatment records from the Veteran's final treatment with Hospice House of Mid-Michigan and from any private psychiatrist who treated the Veteran before his death in 2006 identified by the appellant. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the appellant and her representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the appellant is ultimately responsible for providing information. The appellant and her representative must then be given an opportunity to respond. 2. The RO must obtain a VA medical opinion to ascertain the etiology of the cause of the Veteran's death by an appropriate physician. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the medical opinion report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After reviewing the evidence of record, the examiner must provide an opinion and thorough rationale as to whether there is a probability of 50 percent or greater that the disorders listed as the Veteran's cause of death of anoxic encephalopathy and CAD, the other disorders listed on the death certificate of renal failure and respiratory failure, OR any identified psychiatric disorder were incurred in or due to his active duty service. For any disability deemed to be incurred in or due to the Veteran's active duty service, the examiner must provide an opinion and thorough rationale as to whether there is a probability of 50 percent or greater that the service-connected disability was a principal or contributory cause of the Veteran's death. In this context, to constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. To constitute a contributory cause of death, a service-connected disability must have contributed substantially or materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death. In addition, although there may be primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, there is still for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. A complete rationale for all opinions must be provided. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. The VA medical opinion report obtained must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures before remitting the appellant's claim to the Board. 4. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the appellant's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the appellant and her representative, to include consideration of service personnel records associated with the record in August 2013 as well as all other evidence added to the file since the September 2013 supplemental statement of the case. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 5. This appeal has been advanced on the Board's docket. Expedited handling is required. No action is required by the appellant until she receives further notice; however, 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). _________________________________________________ JOY A. MCDONALD 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) (2013).