Citation Nr: 1623374 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 14-19 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for cause of death of the Veteran (DIC). 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to January 1985. The Veteran died in December 2011. The appellant seeks surviving spouse benefits. The claim for service connection for the cause of the Veteran's death comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision from the Department of Veterans Affairs (VA) Pension Center, in Milwaukee, Wisconsin. A September 2015 rating decision granted service connection for PTSD and assigned a 70 percent rating. In March 2016, the VA received a notice of disagreement (NOD) regarding the assigned rating for PTSD and a claim for TDIU. The Board notes that a TDIU rating is part of an increased rating claim when that issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of TDIU was raised by the record and is part of the increased rating claim before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Board finds that additional development is required for the issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The appellant contends that service-connected PTSD caused the development of long term high blood pressure which ultimately contributed to his death. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). Service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2015). To be considered a contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death. Rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1)(2015). A review of the Veteran's medical records shows that there are both positive and negative medical opinions regarding any connection between the Veteran's PTSD, or psychiatric disabilities, and his cause of death. As a preliminary matter, the Board notes that Veteran's death certificate shows that he died on December [redacted], 2011, of hypertensive and atherosclerotic cardiovascular disease, with no other contributing causes of death. The Veteran was service-connected for PTSD, a back disability, a left hand disability, and scars. In September 2015, VA obtained a medical opinion regarding the relationship between the Veteran's noted cause of death and any aspect of service, to include PTSD. After a review of the Veteran's medical history, to include the death certificate, the VA examiner ultimately concluded that it was less likely than not that any aspect of service contributed to the Veteran's death. The examiner noted that it was less likely than not that the Veteran's PTSD caused, materially contributed, or aggravated the Veteran's cardiovascular disability to cause his death. The examiner opined that cardiovascular conditions are related to a person's genetics, and that the Veteran had several risk factors such as being over 45, high blood pressure, tobacco use, alcohol abuse, morbid obesity, and chronic dyspnea on exertion. The Board finds, that VA examination to be incomplete for adjudications. Specifically, the Board finds that, while the VA examiner concluded that there was no relationship between PTSD and the Veteran's death, the examiner did not provide any explanation or rationale as to why that conclusion contradicted with the positive opinion provided by the Veteran's treating physician. The Board notes that the appellate submitted a July 2014 private medical opinion by the Veteran's treating physician, Dr. F. R. That doctor noted that the Veteran had PTSD, to include anxiety, and that it was likely that the Veteran's PTSD contributed to his high blood pressure which ultimately contributed to his heart attack. Dr. F. R. ultimately concluded that it was a possibility that the Veteran's high blood pressure could have caused his heart attack. The VA examiner's report and opinion does not address the connection the Veteran's private physician made between service-connected PTSD and a cardiovascular disability. The Board notes that the private physician specifically concluded that the Veteran's high blood pressure was a direct result of PTSD, which the VA examiner subsequently noted as a risk factor for the ultimate cause of death. In light of evidence suggesting a casual connection between the Veteran's service-connected disability and his death, the Board finds that the VA examiner's failure to address that private opinion makes the opinion incomplete, and cannot be dispositive of the claim. Therefore, as the examiner did not adequately address the inquiry at hand, further development is required for VA to fulfill its duty to assist the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regard to the appellant's claim for an increased rating for PTSD, a September 2015 rating decision granting service connection for PTSD and assigned a rating of 70 percent. The appellant filed a timely notice of disagreement in March 2016. Therefore, as no statement of the case has been issued, the Board is required to remand the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Remand is also required of the claim of entitlement to TDIU because that claim is inextricably intertwined with the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Issue a statement of the case addressing the issues of entitlement to an increased rating for PTSD and entitlement to TDIU. Notify the appellant that she must submit a timely substantive appeal to perfect an appeal of that claim. If a timely substantive appeal is received, return the case to the Board. 2. Obtain an addendum opinion from the same VA examiner who wrote the September 2015 VA opinion. If the same examiner is not available, obtain a new medical opinion from another qualified physician. The examiner must review the claims file and should note that review in the report. The examiner is asked to report as to whether the any of the Veteran's service-connected conditions, to include PTSD, either caused or contributed substantially or materially to the Veteran's death. 38 C.F.R. § 3.312 (2015). A complete rationale for any opinion expressed should be included in the examination report. The examiner is specifically asked to address the July 2014 private medical opinion provided by the Veteran's treating physician Dr. F. R. The examiner must specifically opine to whether it is at likely as not (50 percent probability or greater) that PTSD caused or contributed to the Veteran's death, to include causing hypertension. The examiner should further opine whether it is at likely as not (50 percent probability or greater) that PTSD aggravated (permanently increased beyond the natural progress of the disorder) hypertension. 3. Then, readjudicate the claims. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs