Citation Nr: 1335492 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-15 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant's representative ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from April 1943 to August 1945. He died in January 2011. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Department of Veterans Affairs Regional Office (RO) in St. Paul, Minnesota. The file is otherwise within the jurisdiction of the Des Moines, Iowa RO. In September 2013 the appellant's representative appeared before the undersigned at a video conference hearing. He made an oral presentation on the appellant's behalf that satisfied her request for a hearing. A transcript of that presentation is located in the Virtual VA folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 appellant seeks to establish her entitlement to service connection for the cause of the Veteran's death. The death certificate notes the immediate cause of death as Alzheimer's disease. The death certificate also notes that the Veteran died in a nursing home. At the time of his death, service connection had been established for gunshot wound with fracture of the left foot; gunshot wound of muscle groups XIII, XIV, XV, and X of the left leg; incomplete paralysis of the left common peroneal nerve; left foot scar, and left leg scars. A combined 70 percent rating was ultimately assigned. In support of her claim, the appellant submitted an August 2013 letter from the Veteran's private physician, B.Q., DO, which states: During this veteran's lifetime, one of the injuries established as service connected was a gunshot wound with fracture to the left foot. As [the Veteran's] attending physician, [the Veteran] was treated on numerous occasions with antibiotics for Chronic Osteomyelitis of the left great toe. Prior to his death, [the Veteran] did have end-stage dementia from Alzheimer's disease, as his health continued to fail, he was unable to take antibiotics for this chronic bone infection. Chronic Osteomyelitis of the left great toe resulting from a gunshot wound obtained while in the service, in my opinion, contributed to his death. The records from Dr. Q., have not been requested. Records of the last treatment at the nursing home also have not been sought or obtained, and may be helpful in adjudicating this claim. As the evidence of record is insufficient to decide the question as to whether a service-connected disability was a contributory cause of death, further development is required. 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) (2012). Expedited handling is requested.) 1. The appellant should be provided with the necessary authorization forms for the release of nursing home treatment records not currently on file. Similarly, appellant should be provided with necessary authorization forms to obtain all clinical records from Dr. Q., who has reported treatment as the Veteran's attending physician. Records rather than additional statements should be obtained. These records should then be obtained and associated with the claims folder. The appellant should be advised that she may also submit any evidence or further argument relative to the claim at issue. 2. After completion of the above, the claims file should be forwarded to an appropriately qualified physician who should be requested to address the following: a) whether there is any clinical evidence of chronic osteomyelitis of the left great toe. If so, please proceed to the subsequent paragraphs b) whether it is at least as likely as not that a service-connected disability caused his later development of chronic osteomyelitis of the left great toe; c) whether it is at least as likely as not that a service-connected disability aggravated beyond the normal progress of the disorder his later development of chronic osteomyelitis of the left great toe; d) if and only if chronic osteomyelitis is deemed to have been caused or aggravated by service-connected disability, whether it is at least as likely as not that chronic osteomyelitis of the left great toe caused or contributed substantially or materially to cause death. Also indicate please whether there is another cause of death that can be identified other than that reported on the death certificate, to include whether there are additional disorders that may have contributed to death, without being the main cause of death. The examiner should provide a complete rationale for any opinion provided. The physician is also requested to comment on the August 2013 opinion of the Veteran's attending private physician. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHAEL D. LYON 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).