Citation Nr: 1400191 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 12-30 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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 Veteran had active service in the United States Army Air Corps from June 1942 to March 1946. The Veteran died in October 2009. The appellant is seeking benefits as the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that, in part, denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Original jurisdiction of the appellant's claim resides in the RO in St. Petersburg, Florida. The Board most recently remanded the case for additional development in August 2013. The case has now been returned to the Board for appellate review. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence pertinent to the claim that is not already included in the paper claims file, including VA treatment records (CAPRI) dated between February 2008 and September 2009, and the VA medical opinion report dated October 3, 2013. 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 paper claims file was transferred to the Board on September 26, 2013. At that time, the evidence of record included VA treatment records (CAPRI) dated between February 2008 and September 2009. These records were added to the electronic file in August 2013, pursuant to the August 2013 Board remand. (The records had been addressed in August 2010 rating decision and the October 2012 Statement of the Case (SOC), but not included in the evidence of record.) After the case was transferred to the Board, a VA medical opinion was generated on October 3, 2013. The evidence of record does not contain any Supplemental Statement of the Case (SSOC) dated after the July 2013 SSOC. As noted in the August 2013 Board remand, private medical treatment records for the Veteran, dated between January 2003 and August 2009, had been received at the St. Petersburg RO on October 29, 2012, and the July 2013 SSOC included no mention of that evidence. Now, in addition to the private medical treatment records that have not yet been addressed in an SSOC, there is a VA medical opinion that has not been addressed in an SSOC. See 38 C.F.R. §§ 19.31, 20.1304; Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The August 2013 Board remand directives specifically stated that the AMC/RO was to obtain a medical opinion from a pathologist. As pointed out by the appellant's representative in the December 2013 Informal Hearing Presentation, an opinion was obtained from a nurse practitioner and not a pathologist. In D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), the Court held that there must be substantial compliance with the terms of a Board remand. Those requirements have not yet been fulfilled and the case, regrettably, must again be remanded. 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) (2013). Expedited handling is requested.) 1. With assistance from the appellant as needed, obtain the Veteran's treatment records from the McGraw Center for Caring and associate them with the claims file. 2. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 3. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed for a determination of the causes(s) of the Veteran's death by a pathologist. The reviewer must be provided with the entire claims file, including any records obtained pursuant to the above development, and a copy of this remand. If the reviewing physician does not have access to the electronic file, any relevant records contained in the electronic file that are not available to the reviewer must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewer is requested to provide an opinion as to the medical probability that any documented pertinent renal, pulmonary or cardiovascular condition was related to the Veteran's service-connected PTSD or to his left ureteral colic. In particular, the reviewer must discuss whether any service-connected disability aggravated, contributed to or accelerated any existing pulmonary, cardiovascular or renal disorder. The reviewer must refer to the VA's National Center for PTSD findings that "a number of studies have found an association between PTSD and poor cardiovascular health" and that "PTSD increases the risk for smoking four-fold" in addressing whether any service-connected disability aggravated, contributed to or accelerated any existing cardiovascular, pulmonary or renal disorder. The reviewer must provide an opinion as to the following questions: a. What was/were the primary/immediate cause(s) of the Veteran's death? b. What were the contributing conditions leading to the primary/immediate cause(s) of the Veteran's death? What role, if any, did the Veteran's service-connected disabilities play in (i) causing, or (ii) aggravating the conditions leading to his death? If the Veteran's PTSD or ureteral colic aggravated, contributed to or accelerated any renal, pulmonary or cardiovascular pathology, the reviewer should state to what extent the disability did so. c. What role, if any, did the Veteran's service-connected disabilities in the aggregate play in (i) causing, (ii) contributing substantially or materially to, or (iii) hastening the Veteran's death? Did the Veteran's left ureteral colic or his PTSD affect a vital organ such as the lungs, heart/vascular or renal system? Could either one of these two disabilities be characterized as having a progressive or debilitating nature? d. Was there any service-related pathology that caused general impairment of health such that the Veteran was materially less capable of resisting the effects of whatever disease or event was the primary cause of death? The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. In assessing the relative likelihood as to origin and etiology of the conditions specified above, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's death is causally or etiologically related to any incident of his active service, including any service-connected disability such as PTSD, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the cause of the Veteran's death. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Upon receipt of the VA physician reviewer's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 5. Thereafter, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 6. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence (including the private medical treatment records for the Veteran dated between January 2003 and August 2009) and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must 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. 2013). _________________________________________________ KATHLEEN K. GALLAGHER 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).