Citation Nr: 1339150 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 13-11 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1968 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The St. Louis, Missouri RO now maintains original jurisdiction over the claims file. The Board has reviewed all relevant documents in the Veterans Benefits Management System (VBMS) and Virtual VA paperless files in its consideration of the appeal. 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 In November 2009, the appellant submitted a VA Form 21-4142 authorization, permitting VA to obtain the Veteran's private medical treatment records. VA did not obtain those records at the time, and in September 2010 correspondence, informed the appellant that they were unable to pursue the records because they did not have the Veteran's doctors' addresses. Thereafter, also in September 2010 the appellant submitted some private medical records, not including any records from the last month of the Veteran's life, but that included the various doctors' addresses. She also submitted a separate VCAA Notice Response, indicating that the relevant doctors' addresses were included in those treatment records. Notably, the appellant did not submit a new VA Form 21-4142; the older signed authorization had expired as of September 2010. In November 2010, VA sought an opinion as to the relationship between the Veteran's service-connected disabilities and his death. Despite the fact that the physician who authored the ensuing December 2010 report specifically explained how he could not provide an opinion without additional records, including the hospital records from the time of the Veteran's death. VA is obligated to assist the appellant in the development of her claim. 38 C.F.R. § 3.159 (2013). That assistance includes obtaining all relevant records. It is clear that the appellant made sincere efforts to permit VA to obtain those records, and thus remand is necessary to obtain them from the Veteran's private medical providers. With regard to what records may exist, the Board takes this opportunity to note that the appellant stated on her original VA Form 21-4142 that the Veteran expired two days following cardiac bypass surgery, in July 2009. As the December 2010 physician was unable to provide the requested opinion due to the lack of records, a new opinion regarding whether the Veteran's death is etiologically related to any service-connected disability, to include diabetes mellitus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any records from the Veteran's various medical providers that are not currently in the claims file, to specifically include the treatment records from the last month of the Veteran's life, including his July 2009 cardiac surgery and his last medical records. After the appellant has signed the appropriate releases those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the appellant cannot be obtained, a notation to that effect should be included in the claims file and the appellant and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After the completion of the foregoing, obtain a medical opinion concerning the cause of the Veteran's death from an appropriate physician. The physician should review the claims file, this remand, and any relevant records in the Virtual VA electronic file; the ensuing report should indicate that such a review occurred. The physician is requested to address the following questions: (a) Is it at least as likely as not (a 50 percent probability or greater) that any service-connected disability was a principal or contributory cause of the Veteran's death? Service-connected disabilities at the time of his death included (1) diabetes mellitus, (2) chronic allergic rhinitis, (3) essential hypertension, (4) residuals of a hand fracture, and (5) bilateral carpal tunnel syndrome. (b) If a service-connected disability was a contributory cause of death, (1) was that disability a substantial and/or material cause of the Veteran's death? (2) did that disability combine with another disability to cause the Veteran's death? (3) did that disability aid, or lend assistance to, the production of death? In addressing these questions, it is not sufficient to show that the disability casually shared in producing death, but rather it must be shown that there was a causal connection. (c) Is it at least as likely as not (i.e., a 50 percent probability or more), that the Veteran's hyperkalemia, acidosis, renal failure, and/or heart failure was caused by, or was aggravated by (chronically worsened beyond the natural progression of the disease), any service-connected disability? The physician should provide a complete rationale for all opinions provided. If the physician is unable to do so with regard to any of the opinions requested without resort to speculation, he or she should so indicate, and should thoroughly explain why no opinion can be provided without speculation. 4. Review the physician's opinion to ensure that it fully complies with the requests in this remand. If the opinion is deficient in any manner, take immediate corrective action. 5. Then, readjudicate the claim for service connection for the cause of death. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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. 2013). _________________________________________________ H. N. SCHWARTZ 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).