Citation Nr: 1332864 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-06 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from January 1943 to February 1946 and from April 1948 to January 1950. He received the Purple Heart Medal. The appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death. The RO in St. Petersburg, Florida, currently has jurisdiction over the appellant's claim. In her May 2011 notice of disagreement, the appellant requested a hearing before a Decision Review Officer (DRO) at the RO. In March 2012 she withdrew her hearing request. In June 2012, the Board granted the appellant's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2013). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In June 2012 and April 2013, the Board remanded this matter for further development. This appeal was processed using the Virtual VA system and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its April 2013 remand, the Board requested that the appellant be provided with complete notice consistent with Hupp v. Nicholson, 21 Vet. App. 342 (2007). Specifically, the Board requested that the Veteran be provided a VCAA notice letter that tells her what conditions were service-connected at the time of the Veteran's death (i.e. PTSD, bilateral hearing loss, a gunshot wound to the left arm with retained foreign bodies, tinnitus, shrapnel wound scars of the left posterior upper arm and left anterior upper arm, bilateral corneal abrasions with conjunctivitis, hemorrhoidectomy, a healed facial wound, and tinea versicolor/dermatophytosis) and also stated that a copy of this letter must be included in the claims file. While the VBMS file contains a VCAA Response from the appellant, the notice she was provided is not of record. This must be done. In addition, the Board requested that the appellant be sent a letter requesting authorization for VA to obtain all records from the identified private treatment providers. The letter sent to the appellant requesting authorization from the private treatment providers is not in the virtual files. A copy must be associated with file. Please ensure that all private providers identified in the Board's April 2013 remand were included in the letter. The appellant first responded with authorization for several providers but the addresses were not provided. However, following notice that VA needed the addresses for each private treatment provider, the appellant returned authorization forms with addresses for at least three physicians at two facilities. There is no indication in the virtual file that an attempt was made to obtain these records. This must be done. As the Board's April 2013 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that if any additional treatment records are obtained and associated with the claims file, the medical professional who provided a July 2012 opinion as to the etiology of the Veteran's cause of death shall be given an opportunity to review the additional records and provide a new opinion. If the same person is not available, a new opinion must be provided. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The appellant shall be provided a VCAA notice letter that tells her what conditions were service-connected at the time of the Veteran's death (i.e. PTSD, bilateral hearing loss, a gunshot wound to the left arm with retained foreign bodies, tinnitus, shrapnel wound scars of the left posterior upper arm and left anterior upper arm, bilateral corneal abrasions with conjunctivitis, hemorrhoidectomy, a healed facial wound, and tinea versicolor/dermatophytosis). A copy of this letter must be included in the claims file. 2. Associate with the virtual file the letter requesting that the appellant complete authorizations for VA to obtain all records of the Veteran's treatment for a psychiatric disability, a cardiac disability, a lung disease, diabetes, a renal disability, pulmonary hypertension, hearing loss, residuals of a gunshot wound to the left arm, tinnitus, a bilateral eye disability, hemorrhoids, facial wounds, and a skin disease from the following treatment providers: Seven Rivers Regional Medical Center in Crystal River, Florida; "Dr. Wm. Visconti" in Hoboken, New Jersey; Sayreville Medical Group; Dr. Brody; "Dr. James Demos;" and Maimonides Medical Center in Brooklyn, New York. 3. Then, attempt to obtain the records from all treatment providers the appellant identified in a signed authorization form, including the three currently of record. All efforts to obtain such records must be documented in the claims file. The agency of original jurisdiction (AOJ) shall send a copy of the Veteran's death certificate to any treatment provider who requires such documentation in order to provide the requested treatment records (especially Seven Rivers Regional Medical Center). If the appellant fails to furnish any necessary releases for private treatment records, she shall be advised to obtain the records and submit them to VA. If any records are unavailable, the appellant shall be notified of the identity of the putative records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claim, and she shall be advised to submit any records in her possession. All such notification must be documented in the claims file. 4. If, and only if, any additional relevant treatment records are obtained, the claims file, including this remand and any relevant records contained in the virtual systems along with any records obtained pursuant to this remand, shall be referred to the VA medical professional who provided the July 2012 opinion to review and provide a new opinion as to the etiology of the Veteran's cause of death. The opinion provider shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that any of the Veteran's fatal disabilities (i.e. a cardiac disability, a renal disability, a lung disease, diabetes mellitus, and pulmonary hypertension) had their onset in service, had their onset in the year immediately following service, were related to the findings of cardiac irregularities in service in April 1942 and February 1943, or were otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD contributed significantly or materially to cause his death (e.g. hastened death or rendered him less capable of resisting the conditions that caused death)? (c) Is it at least as likely as not (50 percent probability or more) that any of the Veteran's fatal disabilities (i.e. a cardiac disability, a renal disability, a lung disease, diabetes mellitus, and pulmonary hypertension) were caused (in whole or in part) by his service-connected PTSD? (d) Is it at least as likely as not (50 percent probability or more) that any of the Veteran's fatal disabilities (i.e. a cardiac disability, a renal disability, a lung disease, diabetes mellitus, and pulmonary hypertension) were aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected PTSD? If any fatal disability was aggravated by the service-connected PTSD, the opinion provider shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's and appellant's statements as to the nature, severity, and frequency of the Veteran's symptoms over time. In formulating the above opinions, the opinion provider shall specifically acknowledge and comment on the findings of cardiac irregularities (e.g. premature ventricular contractions) in service in April 1942 and February 1943 and the medical literature cited by the appellant's representative in its April 2013 statement. The opinion provider shall acknowledge that the claims folder was reviewed and must provide reasons for each opinion given. The opinion provider is advised that the Veteran was competent to report his symptoms and history and that the appellant is competent to report her observations of the Veteran's symptoms and treatment, and such statements by the Veteran and appellant must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's or appellant's reports regarding symptoms, he or she must provide a reason for doing so. The absence of evidence of treatment for a cardiac disability, a renal disability, a lung disease, diabetes mellitus, and pulmonary hypertension in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) If the medical professional who provided the July 2012 opinion is unavailable or otherwise unable to provide the requested opinions, the claims file shall be referred to another VA physician with appropriate expertise to obtain the necessary opinions. 5. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 6. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should 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). 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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).