Citation Nr: 1800864 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-22 063 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and daughter. ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from June 1943 to January 1946 and from April 1948 to March 1954. The Veteran died in April 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Milwaukee Wisconsin RO. In October 2017, a Travel Board hearing was held before the undersigned at the Chicago RO (which now has jurisdiction over the Veteran's record); a transcript is associated with the record. An October 2015 deferred rating decision notes the Veteran submitted claims for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and for special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or on housebound status prior to his death and that they would need to be considered for the purposes of accrued benefits. In addition, the appellant filed an application for burial benefits in May 2011. It does not appear that those issues have yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on her part is required. REMAND The Board finds that further development of the record is needed for a proper adjudication of the instant claim. The Veteran's death certificate shows he died in April 2011. An April 2011 VA discharge summary notes the Veteran was admitted in March 2011 with acute mental status changes secondary to Clostridium Difficile colitis. He was noted to also have a history of advanced dementia, coronary artery disease status post coronary artery bypass graft, hypertension, and prior cerebrovascular accidents. He had been admitted earlier in March 2011 for a urinary tract infection and sinusitis and was treated with ciprofloxacin. Following this course, he developed diarrhea and fell during daycare. He also complained of chest pain and a headache and was taken to the emergency room and found to have a new right parietal lobe infarct since a prior study in January 2011. A chest X-ray also showed fluid overload. On the morning of his death, he appeared in respiratory distress with tachypnea and tachycardia but his oxygen saturations remained in normal range. A chest X-ray showed pulmonary edema. The death certificate notes the immediate cause of his death was respiratory failure. Clostridium difficile colitis and heart failure were listed as underlying causes. Alternative theories of entitlement to service for the cause of the Veteran's death have been raised. At the time of his death, the Veteran's sole service-connected disability was generalized anxiety disorder, rated 50 percent . The appellant contends an underlying cause of his death, heart failure, was secondary to the service-connected anxiety disorder. [A February 2013 report of contact notes a Decision Review Officer (DRO) informed the appellant that the Veteran had been denied service connection for a heart disability prior to his death. However, the DRO was incorrect. As noted by the appellant's representative in a December 2017 appellate brief, an April 1985 rating decision denied service connection for the residuals of a cerebrovascular attack, not a heart disability.] In January 2013, she submitted Internet articles that indicate there is a medical link between anxiety and coronary heart disease. Alternatively, she argues he had dementia that was related to service, involved active processes affecting vital organs (the brain), and contributed to his death, i.e., that there were debilitating effects and general impairment of health to an extent that would have rendered the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. The Veteran's service personnel records show he served as a boxing entertainment specialist during at least part of his active duty service. An August 1950 service treatment record (STR) notes he estimated he had already participated in 150 bouts. His STRs show he sought treatment for multiple head injuries and headaches during active duty service. A December 1943 treatment record notes he sought treatment for a deep cut over the left eye that was caused by boxing. In January 1946, he reported he fell while on board a ship and hit his head on the deck. He was knocked unconscious and then began having headaches. Neurological tests were negative. Post-traumatic headaches were diagnosed. A May 1949 treatment record notes he suffered lip lacerations from boxing. In August 1949, he reported he had an episode of tachycardia four years earlier that he felt he was going to have another one. A March 1950 treatment record notes he complained of headaches and blindness. The treating physician noted he had a similar episode in 1942 and that it was felt to be related to nervousness, but that he was not aware of any current stressors. The admitting doctor felt he had a neurological disorder from boxing, but the treating physician opined it was a functional disorder because a neurological examination was normal. In July 1950, he complained of headaches, dizziness, and what appears to be occasional blindness. A Romberg's test was positive. He reported he blacked out while writing a letter in September 1950. In June 1952, he complained of dizzy spells and that his whole body felt numb. Hypertensive vascular disease was diagnosed. In July 1953 he was observed for headaches and dizziness . The contentions and the evidence raise critical medical questions that must be addressed by competent medical evidence and adjudicatory action (determinations whether or not service connection is warranted for the heart failure, to include as secondary to the generalized anxiety disorder, and dementia). Accordingly, a remand is necessary. The treatment records associated with the Veteran's record do not appear to include the complete records of his VA treatment. Records of treatment in February 1959, April 1983, December 1984, May 1999, June 2009, May 2010, and from September 2010 to April 2011 are associated with the record, but it appears that significant amounts of records of intercurrent treatment are outstanding; in a June 2009 letter, a VA treatment provider notes the Veteran was receiving treatment at the Jesse Brown VA Medical Center (VAMC) in Chicago, Illinois. As records of VA treatment the Veteran may have received for his generalized anxiety disorder, cardiovascular disabilities, and dementia are constructively of record, and may contain pertinent information, they must be secured. The case is REMANDED for the following: (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. The AOJ should secure for association with the record all outstanding records of VA treatment the Veteran received for cardiovascular disabilities, generalized anxiety disorder, and dementia prior to October 2010, to specifically include any outstanding records of treatment at the Jesse Brown VAMC. The appellant should assist in this matter by identifying, to the extent possible, the facilities where treatment (if any) during the periods for which there are no records in the file took place. If such treatment is identified, but the records are unavailable, the reason for their unavailability must be explained for the record, and the appellant should be so advised. 2. After the above-requested development is completed, the AOJ should arrange for the Veteran's record to be forwarded to an appropriate physician for review and an advisory medical opinion. The examiner should also have available for review the 38 C.F.R. § 3.312(c)(1) definition of contributory cause of death and 38 C.F.R. § 3.312(c)(3) and (4) instructions for considering service-connected diseases or injuries involving active processes affecting vital organ. Upon review of the record, the examiner should respond to the following: (a) Please identify (by diagnosis) each cardiovascular or cerebrovascular disability entity the Veteran is found to have had. (b) Please identify the likely etiology for each cardiovascular/cerebrovascular disability entity diagnosed? Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) his active duty service, to include his activities as a boxer and/or complaints of tachycardia and diagnosis of hypertension vascular disease therein; or was either caused or aggravated by the Veteran's service-connected generalized anxiety disorder? If a cardiovascular disability is found to not have been caused, but to have been aggravated by the service-connected anxiety disorder, please identify the degree of impairment that is due to such aggravation. If a diagnosed cardiovascular/cerebrovascular disability is determined to be unrelated to the Veteran's service or his service-connected generalized anxiety disorder, please identify the etiology considered more likely. (c) Please identify the etiology (underlying pathology)for the Veteran's diagnosed dementia. Specifically, is it at least as likely as not (a 50% or better probability) that it arose during (was first manifested in, or is otherwise etiologically related to) his active service, to include his activities as a boxer and documented complaints and treatment for head injuries and headaches therein? (d) If the dementia is determined to be etiologically related to the Veteran's service, is it at least as likely as not (a 50% or better probability) that it resulted in debilitating effects and general impairment of health to an extent that would have rendered him materially less capable of resisting the effects of other disease or injury primarily causing death? The examiner must provide rationale for all opinions, to specifically include comment on the opinions/textual evidence already in the record, including the Internet articles submitted by the appellant that indicate there is a medical link between anxiety and coronary heart disease. 3. The AOJ should then review the entire record, arrange for any further development indicated, and readjudicate the claim (to include consideration of whether any cardiovascular/cerebrovascular disability and/or dementia the Veteran is shown to have had should be considered service connected, to include as secondary to the Veteran's generalized anxiety disorder). If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the appellant and her representative opportunity to respond, and return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).