Citation Nr: 1636167 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 09-01 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1943 to January 1946. He died in May 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2010, the appellant and her daughter testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was remanded in July 2010 and December 2011. In a May 2014 decision, the Board denied service connection for the cause of the Veteran's death. The appellant appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which in June 2015, granted a Joint Motion for Remand (Joint Motion) of the parties (VA Secretary and the Veteran), vacated the Board's decision, and remanded the for re-adjudication consistent with the Joint Motion. Pursuant to the Joint Motion, the Board again remanded the appeal in September 2015 and February 2016. The matter has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 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 Although the Board regrets any additional delay, further development is found warranted in order to meet VA's duty to assist the appellant in providing an adequate medical opinion. Pursuant to the Board's February 2016 remand instructions, the file was returned to the VA physician who provided the September 2015 advisory opinion, with additional questions to be addressed. Specifically, the physician was directed to indicate whether it is at least as likely as not that any of the Veteran's service-connected disabilities caused or contributed substantially or materially to his death from blunt force head trauma from his second fall, whether his initial and second fall were caused by his service-connected psychogenic headaches, and whether the Veteran had Parkinson's disease related to military service, and if so, whether such caused or contributed substantially or materially to his death. In a February 2016 supplemental medical advisory opinion, the VA physician provided a chronological account of what likely occurred on the day of the Veteran's fall in May 2008, and concluded that both his initial backwards fall and second forward fall onto his face were most likely the result of sudden neurological events/syncopes, which were less likely than not related to any of his service-connected disabilities. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In July 2016 correspondence, the appellant's attorney identified inconsistencies and deficiencies within the February 2016 opinion which the Board agrees render the opinion inadequate for adjudicatory purposes. The physician's medical opinion that the two falls resulting in the Veteran's head trauma and skull injuries were the result of syncopal episodes relied heavily upon the premise that the Veteran fell unimpeded both times, with the writer noting a lack of injuries to other parts of the body, which he explained would be expected had the Veteran made an attempt to break his fall. The physician then speculated that a third collapse, occurring when the appellant was trying to assist the Veteran in getting up from the floor, was "likely when he scratched his hand and knee." The opinion lacks an explanation as to how the physician determined that the Veteran incurred these injuries at that point in time, as opposed to during the second fall. In the July 2016 argument, the appellant's attorney noted that in addition to the May 2008 Ambulance Patient Care report documenting scratches on the Veteran's hand and shin, the injury description notes that the Veteran had soft tissue swelling and bruising on his left knee and both hands. On remand, an addendum opinion should be sought to clarify how the physician reached his conclusion as to the second fall, and further, to obtain an opinion as to whether the second fall contributed substantially or materially to the Veteran's death. 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). Expedited handling is requested.) 1. Forward the claims file to the VA clinician who provided the September 2015 and February 2016 advisory medical opinions, or to a suitable substitute if he is unavailable, for an addendum opinion as to the cause of the Veteran's death. After reviewing the claims file, to include this remand, the physician must furnish an opinion as to the following: a. Whether the Veteran's second fall, following an initial fall backwards from standing resulting in him hitting the base of his skull, caused or contributed substantially or materially to his death? b. If yes, is it at least as likely as not (50 percent or greater probability) that any of the Veteran's service-connected disabilities, including psychogenic headaches, bilateral knee arthritis, perforated right ear drum, bilateral hearing loss, tinnitus, and/or left great toe shell fragment wound, caused or resulted in his second fall? If the physician determines that this fall was not the result of a service-connected disability, he or she should comment upon the evidence from the ambulance and hospital immediately following the Veteran's fall in May 2008 documenting his injuries. In particular, if the physician finds that the scratches to the hand and shin, and/or other injuries resulted from some later fall, he or she should explain how this was determined. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the examination report the rationale for any and all opinions expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 2. Thereafter, conduct any additional development deemed necessary then readjudicate the appellant's claim for entitlement to service connection for the cause of the Veteran's death, in light of the expanded record. If the benefit sought on appeal is not granted in full, the appellant and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).