Citation Nr: 1338188 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-34 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from April 1954 to January 1958. The Veteran died in December 2005 and the appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2013, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the RO (Videoconference). A hearing transcript has been associated with the claims file. In June 2013, the Board remanded the appellant's claim to the RO (via the Appeals Management Center (AMC) in Washington, D.C. for further action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file reveals the Veteran's VA treatment records dated through December 2005; such records were considered in the August 2013 supplemental statement of the case (SSOC). 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)(1) (West 2002). The appeal is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The appellant claims service connection for the cause of the Veteran's death, to include entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. She contends that an in-service motor vehicle accident caused the formation of scar tissue in the Veteran's lung and that his lung cancer developed as a result of this lung scar tissue. In the alternative, she argues that VA's failure to timely diagnose the Veteran's lung cancer caused and/or substantially or materially contributed to his death. In that regard, she contends that the Veteran's treating VA pulmonologist and other VA staff failed to recognize the signs and symptoms of probable bronchogenic carcinoma based upon the Veteran's history, weight loss, low hemoglobin levels, suspicious bronchoscopy at a private facility and continuing hemoptysis. Moreover, she argues that VA failed to obtain pertinent private testing results despite informing the Veteran that they would do so. In June 2013, the Board sought an opinion as to whether the cause of the Veteran's death was related to service, to include his service-connected disabilities and the in-service motor vehicle accident. An opinion as to whether any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA facility care or medical treatment in failing to timely diagnose the Veteran's lung cancer caused and/or substantially or materially contributed to his death was also to be obtained. Such an opinion was obtained in September 2013. The examiner determined that the Veteran's service, in-service motor vehicle accident and service-connected disabilities were less likely than not to have caused or contributed to his lung cancer or lung cancer related death; a detailed case history and rationale were provided by the examiner in support of this opinion. The examiner further opined that the VA staff did not appear to have acted carelessly, negligently or with improper skill nor did they make judgment errors in the provision of care to the Veteran. In reaching this opinion, the examiner specifically addressed the appellant's contentions that the Veteran's weight loss was a symptom of his lung cancer and that the cancelation of pulmonary function testing in May 2004 delayed the diagnosis of his lung cancer. Unfortunately, the September 2013 VA examiner failed to address the appellant's contention that VA's failure to recognize the Veteran's low hemoglobin level resulted in a failed or delayed diagnosis of lung cancer. In his report, the examiner noted that "if [VA] staff represented to the [V]eteran that [private treatment] records would be obtained then they should have been, or a satisfactory explanation as to why they weren't" obtained should be noted in the record. However, the examiner did not address the August 25, 2004 VA treatment note, authored by a nurse practioner, stating that she would contact either the private hospital or a VA pulmonologist regarding the Veteran's private treatment records when rendering this opinion. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where ... the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the deficiencies detailed above, this matter must be remanded for an addendum opinion and to ensure compliance with the Board's previous remand. 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. Return the claims file, to include a copy of this remand, to the September 2013 VA examiner for an addendum opinion. If the examiner who drafted the September 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the claims folder and note such review in the examination report. After reviewing the claims file, the examiner should offer an opinion as to the following: Was there was any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA facility care or medical treatment by VA in the treatment of the Veteran, including any failure to timely diagnose the Veteran's lung cancer? The examiner should specifically address the appellant's contentions that: a) VA failed to recognize the Veteran's low hemoglobin levels in 2004 and 2005 as a symptoms of probable bronchiogenic carcinoma, resulting in a delayed diagnosis of lung cancer or the failure to diagnose lung cancer; b) VA failed to recognize the importance of the Veteran's hemoptysis in November 2004 and failed to schedule a bronchoscopy or other urgent appointments, resulting in a delayed diagnose of lung cancer or the failure to diagnosis lung cancer; c) VA failed to obtain the Veteran's pertinent private treatment records and testing results, despite informing him that they would do so, resulting in a delayed diagnosis of lung cancer or the failure to diagnose lung cancer. The examiner should specifically refer to the August 25, 2004 VA treatment note, drafted by a nurse practioner, when providing this opinion. The examiner should provide a detailed rationale for all opinions expressed. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claims remain denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MARJORIE A. AUER 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).