Citation Nr: 1333918 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-31 136 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to February 1972. He died in February 2007. The appellant is his widow. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO, inter alia, denied service connection for the cause of the Veteran's death. In August 2007, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2010, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2010. In June 2013, the appellant testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the appellant's claim. The electronic file contains a copy of the June 2013 hearing transcript, which the Board has reviewed. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant when further action, on her part, is required. As a final preliminary matter, the Board notes that, in correspondence dated in November 2007, the appellant's representative raised issues pertaining to the appellant's entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151 and 1318. It does not appear that these claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. In this case, the evidence reflects that the Veteran died in February 2007. The original death certificate, issued in February 2007, indicates that the immediate cause of his death was cardiopulmonary arrest due to, or as a consequence of, esophageal cancer and pseudomembranous colitis. An amended death certificate, issued in January 2010, lists the cause(s) of death as cardiopulmonary arrest, esophageal cancer, and pseudomembranous colitis, with "psychosis" listed as an "other significant condition[]." At the time of his death, the Veteran's only service-connected disability was schizophrenic process, undifferentiated type, evaluated as 100 percent disabling from October 2005. Other medical conditions present, but not service connected, included asthma and hypertension. The appellant and her representative have asserted, in effect, that the Veteran's service-connected psychosis contributed to his death. During the June 2013 hearing, they advanced argument to the effect that the Veteran's psychosis contributed substantially or materially to his death, combined to cause his death, and/or aided or lent assistance to the production of his death in that it interfered with his ability to properly manage his health, to include taking necessary medications. In April 2008, the Veteran's treating VA psychiatrist opined that the Veteran's schizophrenic condition contributed to a heart attack, which contributed to his death. The psychiatrist stated, in pertinent part: The patient never appreciated the full extent of his heart condition and therefore did not do what he should have done to reduce the risks that contributed to his heart attack. In addition, his schizophrenic process impaired his judgment, caused lack of insight and he never appreciated how serious his cardiac illness was. Furthermore, his disabling schizophrenic illness tore at him continuously to where he could not concentrate on his cardiac health. He had all he could do to grapple with his schizophrenic process. He had little energy to do anything else. In March 2010, a VA examiner reviewed the available evidence for purposes of providing a medical opinion with respect to whether the Veteran's service-connected psychiatric disorder contributed substantially and materially to his death. The examiner concluded that it was unlikely. In support of her opinion, the examiner observed that outpatient psychiatric notes dated from July 2003 to July 2006 reflected that the Veteran's psychosis was under fair control, that there was no documented history of coronary artery disease or myocardial infarction, and that the Veteran died of end-stage esophageal cancer. The record, as it stands, is insufficient to allow the Board to make a fully informed decision with respect to the matter on appeal. It is true, as the March 2010 examiner has observed, that the available VA clinical records are devoid of any diagnoses of cardiac disease. As a result, it appears that the April 2008 opinion may have been based on an inaccurate factual premise. On the other hand, there is evidence that the Veteran had medical conditions other than cardiac disease, including asthma and hypertension. The March 2010 opinion was rendered by a nurse practitioner, rather than a psychiatrist or psychologist, and the practitioner's assessment of the Veteran's psychiatric condition as being "under fair control" stands in stark contrast to the description of impairment provided by the Veteran's treating psychiatrist in April 2008. Significantly, as noted above, the Veteran's service-connected psychosis was evaluated as totally (100 percent) disabling beginning in October 2005. For the reasons stated, the Board finds that the opinions currently of record are inadequate. As such, a new medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the appellant's claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the claims file to be reviewed by a psychiatrist or psychologist to obtain another opinion. Prior to arranging for such review, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Contiguous records of the Veteran's treatment through the VA Medical Center (VAMC) in Washington, D.C. were last associated with the Veteran's claims file on July 7, 2004; more than two years prior to his death. It appears clear from the record, including the report from the March 2010 VA examiner (referencing VA clinical records that are not contained in the claims file), and statements from the appellant (referencing VA nursing home and hospice care the Veteran received during the months immediately preceding his death), that more complete medical records from this facility exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since July 7, 2004; to particularly include records pertaining to any VA nursing home and hospice care he received during the months immediately preceding his death. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The letter should contain (1) a statement of the conditions, if any, for which the Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The RO should also specifically request that the appellant provide, or provide appropriate authorization for it to obtain, any outstanding private medical records, including any relevant records from Frankford Hospitals, where the Veteran reportedly received treatment sometime around August 2006. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. As indicated, the RO's adjudication of the claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Obtain from the VAMC in Washington, D.C., any outstanding, pertinent records of evaluation and/or treatment of the Veteran since July 7, 2004; to particularly include records pertaining to any VA nursing home and hospice care he received during the months immediately preceding his death. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the appellant and her representative a letter requesting that the appellant provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The letter should contain (1) a statement of the conditions, if any, for which the Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter should also contain a specific request that the appellant provide, or provide appropriate authorization for it to obtain, any outstanding private medical records, including any relevant records from Frankford Hospitals, where the Veteran reportedly received treatment sometime around August 2006. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include any additional records from Frankford Hospitals-following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND and printed paper copies of all evidence relevant to the examiner's review (if the examiner does not have access to the Veteran's electronic (Virtual VA) file), to a VA psychiatrist or psychologist for a comprehensive review of the record and an opinion as to the relationship, if any, between the Veteran's service-connected psychosis and his death. Specifically, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected psychosis caused, or contributed substantially or materially to, the Veteran's death. In so doing, the examiner should specifically address the appellant's contention that the Veteran's psychosis contributed substantially or materially to his death, combined to cause his death, and/or aided or lent assistance to the production of his death in that it interfered with his ability to properly manage his health, to include taking necessary medications. The examiner should also discuss the medical significance, if any, of the fact that psychosis is listed on the Veteran's amended death certificate as an "other significant condition[]." The examiner should set forth a complete rationale for the conclusions reached in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the appellant and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).