Citation Nr: 1417149 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 04-13 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. The Veteran died in December 1998. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The claim was most recently before the Board in April 2010. A June 26, 2009 Board decision denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant thereafter appealed that decision to the United States Court of Appeals for Veterans Claims (Court) which, upon a December 2009 Joint Motion for Remand (that moved the Court to vacate the Board's June 26, 2009 decision), promulgated an Order on December 16, 2009 that granted the motion of the parties. The granting of the motion had the effect of vacating the Board's June 26, 2009 decision that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The Board remanded the claim in April 2010, as required by the December 2009 Joint Motion for Remand. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The claim was remanded in April 2010 to obtain an adequate VA medical opinion that includes a full review of the medical evidence of record, including the Veteran's reported glucose results. The remand instructed the RO to obtain a new medical opinion from an appropriate VA specialist that would reconcile the previous medical opinions of record, and make a determination as to whether it is at least as likely as not that diabetes mellitus contributed substantially or materially to the Veteran's death, or combined to cause death, or aided or lent assistance to the production of his death. The examiner was instructed to specifically note and comment upon a number of glucose readings, including a reading of 251 mg/dl on July 9, 1996. A new VA opinion was obtained in April 2011. Unfortunately, this report did not conclude whether it is at least as likely as not that diabetes mellitus contributed substantially or materially to the Veteran's death, or combined to cause death, or aided or lent assistance to the production of his death. Instead, the April 2011 examiner opined that sepsis, liver failure, cancer of the pharynx and pneumonia are not caused by or a result of diabetes mellitus. Moreover, the report was not written by a specialist, and it did not address the July 9, 1996 glucose reading. Another VA examination report was obtained in May 2013. This examination was inadequate. The examiner listed the glucose readings mentioned in the April 2010 remand, and stated that the "above mentioned glucose readings are not indicative of out of control...diabetes." The examiner then opined that the Veteran's diabetes mellitus did not contribute substantially or materially to the Veteran's death, or combine to cause death, or aid or lend assistance to the production of his death. The examiner did not provide any rationale. A medical opinion that is unsupported by rationale is inadequate. Nieves-Rodriguez v. Shinseki, 22 Vet. App. 295 (2008). Moreover, the May 2013 report did not reconcile the other medical opinions of record. Therefore, the claim must be remanded again to obtain a medical opinion in accordance with the April 2010 remand. See Stegall v. West (11 Vet. App. 268) (1998). The Board also notes that the April 2011 VA opinion discussed the Veteran's medical records at length, and addressed each glucose reading referred to in the April 2010 Board remand except for the reading from July 9, 1996. The examiner stated that she had reviewed "all glucose levels that were available in the medical record." After performing its own search of the claims file, the Board has found that the July 9, 1996 inpatient progress note indicating a blood sugar level of 251 mg/dl is not associated with the claims file. The agency of original jurisdiction (AOJ) should find this missing note and associate it with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ must conduct a search to locate the July 9, 1996 inpatient progress note reporting a blood sugar level of 251 mg/dl. If located, this document must be associated with the claims file. All efforts to locate the progress note should be documented in the claims file. If the progress note cannot be located, the appellant must be notified and provided the opportunity to resubmit the information. 2. Thereafter, forward the claims folder to an appropriate VA specialist who has not previously offered an opinion in this matter to review the claims folder and reconcile the October 2003 and March 2007 private examiner opinions with the June 2006, January 2009, April 2011, and May 2013 VA opinions. After reviewing the claims folder, the VA examiner should also furnish an opinion as to whether it is at least as likely as not that diabetes mellitus contributed substantially or materially to the Veteran's death, or combined to cause death, or aided or lent assistance to the production of his death. In rendering such an opinion, the VA examiner must explicitly address Dr. C.N.B.'s March 2007 opinion, as well as the earlier October 2003 statement written by Dr. L.G. Additionally, the examiner must specifically note and comment upon, as appropriate, the glucose readings of 251 mg/dl (July 9, 1996), 131 mg/dl (March 19, 1997), 128 mg/dl (December 5, 1997), 141 mg/dl (May 5, 1998), 239 mg/dl (November 6, 1998), and 245 mg/dl (December 1998) as noted in the December 2009 Joint Motion of the parties. The examiner must provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The examiner should review the claims folder, to include the December 2009 Joint Motion for Remand, and this fact should be noted in the accompanying medical report. 3. After completing the aforementioned development, the AOJ should readjudicate the issue of entitlement to service connection for the cause of the Veteran's death. If the benefit sought is not granted to the appellant's satisfaction, a supplemental statement of the case should be issued, and the appellant and her representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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). _________________________________________________ U. R. POWELL 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).