Citation Nr: 1757068 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-01 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to October 1970. The appellant in this case is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant and VA agree that the Veteran died of a gunshot wound to the head and was found on May 10, 2012, as indicated on his Certificate of Death. The parties also agree that the gunshot was self-inflicted. At the time of his death, the Veteran was service-connected for: a shell fragment wound (SFW) to both lower extremities with below the knee (BK) amputation on the left and fractured ankle and foot on the right with continued pain in the ankle and foot on the right; ischemic heart disease (IHD) status post myocardial infarction (MI); SFW right lower extremity with retained foreign bodies , fracture of the fibula and degenerative joint changes at the talocalcaneal articulation and tibial taler articulation; left lower extremity SFW scar; diabetes mellitus type 2 (DMII); atrophy of quadriceps due to SFW left lower extremity with BK amputation; and bilateral pseudophakia, status post bilateral cataract removal associated with DMII. He was also entitled to special monthly compensation under 38 C.F.R. § 3.350(i)(2011) as he had one disability rated at 100 percent and other disabilities independently rated at 60 percent. He was not service-connected for any mental health conditions at the time of his death or any time before that. The record does not contain any diagnosis of a mental health disorder. However, the Appellant claims that the Veteran was suffering from a mental health disorder caused by his service and/or his service-connected disabilities and that his death was a direct result of the claimed mental health disorder. There are lay statements and limited medical notes in the record that appear to support the Appellant's claim. VA's duty to assist a claimant, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, some evidence supports the Appellant's claim that her deceased husband was suffering from a mental health disorder at the time of his death, and that this disorder was caused by either his service or his service-connected disabilities. Therefore, a remand is warranted to obtain a medical opinion as to the nature, cause, and effect of any mental health disorder the Veteran may have had at the time of his death. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from a VA mental health examiner regarding the nature of the Veteran's cause of death. Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's service-connected disabilities contributed substantially or materially to his death. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resort to speculation, the physician must explain why such an opinion would be speculative. In rendering an opinion, the examiner must discuss the lay assertions that the Veteran's suicide was a direct result of a mental health disorder, and that this disorder was caused by his service or service-connected disabilities. The examiner's report should specifically discuss the following evidence: A. The Appellant's lay statement received January 15, 2014. B. The Veteran's ex-wife's lay statement received January 15, 2014. C. The Veteran's friend's lay statement received January 15, 2014. D. Records from the Denver VA Medical Center including: i. A cardiologist's note from early 2006 indicating his concern that the Veteran was suffering from depression or an anxiety disorder, and noting the Veteran's refusal to see a mental health professional. ii. Depression screens and comments from March 20, 2006; June 1, 2006; September 29, 2008; April 26, 2010; July 8, 2010; September 8, 2010; October 15, 2010; August 8, 2011; and August 23, 2011. For purposes of this opinion, the examiner should give no weight or deference to the diagnoses offered in the lay statements. However, the examiner should consider the lay statements to be credible as far as the easily observable symptoms they describe. 2. Readjudicate the claim. 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). _________________________________________________ R. FEINBERG 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) (2017).