Citation Nr: 1343072 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-01 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas 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 M. J. In, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran. The Veteran served on active duty from May 1984 to May 2004; he died in September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The record reflects that the appellant was scheduled for a July 2010 hearing she requested before a Veterans Law Judge sitting at the RO. She did not report to the scheduled hearing, and no good cause has been shown. Her request for a Board hearing therefore is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). The Board remanded the claim in September 2010 for additional development, and it now returns to the Board for further review. 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 Another remand is required based upon the need to fulfill the duty to assist the appellant with her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board remanded the case in September 2010 to obtain the complete records pertaining to the Veteran's fatal motorcycle accident on September [redacted], 2006, including any police reports describing the circumstances of the accident, and terminal hospitalization records from Scott & White Hospital. Pursuant to the Board's remand, the AMC in a September 2010 letter asked the appellant to complete and return a VA Form 21-4142 (Authorization and Consent for Release Information) for Scott & White Hospital to obtain the Veteran's terminal treatment records. The AMC also requested from the appellant any additional records of the accident. The appellant submitted no response, and the AMC accordingly issued a May 2011 supplemental statement of the case continuing the denial of the claim. Subsequently, in February 2012, the appellant asserted that she never received the September 2010 VA letter requesting additional evidence. She then submitted copies of a paramedic's field report from the Capitol Ambulance, dated September [redacted], 2006; and a Texas Peace Officer's Crash Report, dated in October 2006. She also submitted a VA Form 21-4142 for Scott & White Medical Center. The additional evidence submitted by the appellant in February 2012 has not been previously considered by the RO/AMC when the appellant's claim was last adjudicated in May 2011. This evidence is relevant, and requires additional development and review by the RO/AMC prior to Board adjudication of the claim. See 38 C.F.R. §§ 19.31, 19.37 (2013); Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-43 (1996) (quoting Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992)). Finally, in a February 2012 Informal Hearing Presentation, the appellant's representative requested that a VA medical opinion be obtained to determine whether the Veteran's service-connected disabilities contributed to his death. The substantial breadth of the Veteran's service-connected disabilities leads the Board to concede the likelihood of some indication of a possible link between one of these service-connected disabilities and the cause of the Veteran's death, or some indication of a possible contribution to the onset of death by one of the service-connected disabilities. Hence, a medical opinion is warranted upon remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). Accordingly, the case is REMANDED for the following action: 1. Afford the appellant the opportunity to submit additional evidence or argument in furtherance of hear appealed claim. 2. Obtain the complete records of the Veteran's treatment at the Scott & White Medical Center, dated in September 2006, with additional authorization or assistance of the appellant to the extent required. Once obtained, the records must be associated with the claims file. All attempts to secure this evidence must be documented in the claims file or the virtual VA file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable do so, the RO must notify the appellant and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) inform the appellant that she may obtain and submit the records herself; and (c) describe any further action to be taken by the RO/AMC with respect to the claim. The appellant must then be given the appropriate opportunity to respond. 3. Thereafter, the RO/AMC must obtain a VA medical opinion by an appropriate VA physician as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, alone or in combination, either caused or contributed substantially or materially to the cause of his death. For this purpose, the examiner should be provided a list of the Veteran's service-connected disabilities. However, if death was inevitable due to the nature of the motorcycle accident and the injuries sustained thereby, the examiner should not conclude that service-connected disabilities distinct from the cause or potential causes of the motorcycle accident caused or contributed to the Veteran's death. The claims file must be made available to and reviewed by the examiner in conjunction with the requested opinion. For all opinions expressed, a complete rationale, supported by medical knowledge and evidence of record, must be provided. 4. After completion of the above, the RO/AMC must readjudicate the appellant's claim on appeal, taking into consideration all newly obtained evidence. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the appellant, which must address all of the evidence of record since the issue was last adjudicated by the RO/AMC. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2013). _________________________________________________ DAN SCHECHTER Acting 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).