Citation Nr: 1539021 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 14-36 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1966. He died in December 2012; the appellant is the Veteran's widow. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issues on appeal were denied by the Board in March 2015. The appellant appealed the March 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). The March 2015 Board denial was vacated and remanded back to the Board by the Court in a July 2015 Order based on a June 2015 Joint Motion For Remand (Joint Motion). The appellant and her daughter testified at a videoconference hearing with the undersigned in December 2014, and a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in December 2012 and the Death Certificate reveals that respiratory failure was the immediate cause of death with hypoxia, aspiration pneumonia, and congestive heart failure diastolic the underlying causes of death. At the time of his death, he had been assigned a 100 percent rating for prostate cancer, in effect since June 24, 2009, and a 0 percent rating for erectile dysfunction, in effect since August 31, 2009. According to the June 2015 Joint Motion, the March 2015 Board denial was in error in denying the issues on appeal based primarily on the results of a September 2014 VA nexus opinion, which concluded that the Veteran's death was not causally related to prostate cancer with erectile dysfunction or diabetes, because the VA examiner did not specifically address to what extent the Veteran's prostate cancer and/or diabetes mellitus contributed to his death, to include the underlying cause of death of congestive heart failure. The Joint Motion also indicated that there might be outstanding relevant treatment records that needed to be obtained and added to the record because it was noted by a physician in 2013 that he had treated the Veteran for "several years" but the VA treatment records on file only covered the period from February 2011 to December 2012. With respect to the need to obtain additional VA treatment records, the appellant submitted a CD in July 2015 that included all of the Veteran's medical records from the Danville VA Medical Center in Danville, Illinois. Because the VA physician who noted in a November 2013 statement that he had treated the Veteran for "several years" was at the VA Danville Medical Center, it appears that the records referred to in the Joint Motion are now of record. The Board notes that the appellant indicated in a July 2015 written response to a Board letter that she wanted the case remanded back to the AOJ for review of the additional evidence that she had submitted. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AMC/RO will obtain a VA medical opinion from an appropriate medical professional to determine whether the Veteran's cause of death was related to his service-connected disabilities, to include diabetes, or otherwise related to service. The record must be made available to and reviewed by the medical professional. After review of the entire record, this medical professional must opine as to what extent the Veteran's prostate cancer, including treatment, and/or diabetes contributed to his death, to include the underlying cause of death of congestive heart failure. This opinion will address whether it is at least as likely as not (50 percent probability or more) that the Veteran's prostate cancer and/or diabetes caused or contributed substantially or materially to his death from hypoxia, aspiration pneumonia, and congestive heart failure. A complete rationale for any opinion expressed must be given, to include, as appropriate, citation to specific evidence in the record. In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means 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 that conclusion as it is to find against it. 2. The AMC/RO will then re-adjudicate the appellant's claims for entitlement to service connection for the cause of the Veteran's death and for DIC under 38 U.S.C. § 1318 (2014) based on all of the evidence of record, to include the medical records from the Danville Veterans Hospital submitted by the appellant in a CD received by the Board in July 2015. If either of the benefits sought on appeal remains denied, the appellant and her representative will 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 and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2014).