Citation Nr: 1801489 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-37 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION 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 Veteran served on active duty from January 1959 to July 1978. The Veteran died in October 2012. The appellant filed a claim as the surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. During the course of the appeal, the claims file was transferred to the RO in Roanoke, Virginia. The Board previously remanded this case for additional development in May 2015 and December 2016. The case has been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is required again in this case to ensure that the Appellant is given every consideration. VA failed to substantially comply with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the claimant is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure this compliance). In particular, the July 2017 medical opinion is inadequate for rating purposes, given prior remand directions. See Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). In the December 2016 remand, the Board directed the AOJ to obtain an addendum medical opinion requesting an examiner to consider whether it is at least as likely as not that the Veteran's COPD substantially and materially contributed to his death or had its onset in service. It was specifically requested that service treatment records (STRs), April 2013 letter by Dr. B.G., May 2013 letter from Dr. P.M. and October 2012 autopsy report. Subsequently, the AOJ obtained a medical opinion in July 2017. However, the Board finds that this July 2017 medial opinion is inadequate for not meeting the requirements set forth in the Board remand directives. First, the July 2017 medical opinion only refers to an issue whether the COPD caused the renal failure and bladder cancer. In particular, the July 2017 examiner failed to discuss the opinion provided by Dr. P.M. that the Veteran's COPD impeded treatment for what ultimately caused his death. In the opinion, Dr. P.M. discusses in detail what treatment options were considered and why some of them were not selected. The July 2017 medical opinion does not address any of these specific details provided in the May 2013 Dr. P.M. letter. Therefore, the July 2017 medical opinion is insufficient because it failed to review material medical evidence and discuss the impact of the Veteran's COPD on his treatment for the renal failure and bladder cancer. Second, there is no indication in the July 2017 medical opinion that the examiner considered the Veteran's relevant STRs. As noted in the December 2016 remand, the Veteran's STRs show he was admitted from October 10, 1959 to October 14, 1959 for pneumonitis due to zinc, chest tightness, and nonproductive cough, chest pain and tightness, and wheezing. An August 1972 records also notes wheezing and productive cough with diagnosis of acute and chronic bronchitis. Provided that some of the symptoms for COPD are similar to those reported during service, it is insufficient for the July 2017 examiner to state only that the "STRs did not show him being treated for, or evaluated for COPD in service" without any evaluation as to whether there is a relationship between the Veteran's pulmonary findings in service and his later-diagnosed COPD. Therefore, another opinion must be obtained to rectify the inadequacies of the VA examination report. 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. Obtain a medical opinion from an appropriate medical professional concerning whether there is a relationship between the Veteran's service, his later diagnosed COPD, and his death from chronic renal failure and bladder cancer with wide spread metastasis. Provide the examiner with access to the Veteran's electronic VBMS and Virtual VA claims files. The examiner must review the claims files and indicate in the report that they were reviewed. The examiner must review the following documents: a. April 2013 letter by Dr. B.G.; b. May 2013 letter from Dr. P.M., ; and c. October 2012 autopsy report, and specifically state in the examination report that all three documents were reviewed. The examiner should provide an opinion, based on the record, to include all of the Veteran's STRs and the above 3 documents, regarding: whether it is at least as likely as not (a 50 percent or greater probability) that: (1) the Veteran's COPD substantially and materially contributed to his death; and (2) the Veteran's COPD is related or aggravated by an in service incurrence or had its onset in service. Specifically, it must be indicated whether the in-service pulmonary findings are indicative of the early onset of COPD, or are otherwise responsible for the development of COPD. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 2. After the development requested has been completed, the AOJ should review any examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 3. Then, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the Appellant, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. 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). _________________________________________________ MICHAEL D. LYON 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).