Citation Nr: 1801594 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-42 391 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: John M. Dorle, Agent WITNESS AT HEARING ON APPEAL Appellant's son ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran had active duty service from April 1971 to April 1973. He died in September 2011. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 rating decision in which the RO, inter alia, denied the appellant's claim for service connection for cause of death. In March 2012, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2014 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2014. In November 2017, the appellant's son appeared, along with her agent, and offered testimony, on her behalf, during a Board video conference hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. In December 2017, the Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket. See 38 U.S.C. § 7017 (a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on her part, is required. REMAND The Board finds that further action on the claim on appeal is needed, even though such will, regrettably, further delay an appellate decision on this matter. The appellant contends that the Veteran's service-connected disabilities caused or contributed to his death. The Veteran's death certificate reflects that the Veteran's immediate cause of death was acute myocardial infarction. Chronic obstructive pulmonary disease (COPD) and hypertension were listed as other significant conditions contributing to death. At the time of death, the Veteran was service-connected for the following disabilities: mood disorder, evaluated as 50 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as 0 percent disabling (noncompensable). He also had been awarded a total disability rating based on individual unemployability, effective November 7, 2006. In a letter dated in January 2012, a private physician opined that considering every sound medical etiology/principle, to at least the 50 percent level of probability, the Veteran's demise was due to his service connected illnesses. The physician explained that the radiculitis from the Veteran's spine injury resulted in mobility difficulties. He was deconditioned due his spine and nerve injuries and decondition hastened his demise. The physician concluded that the Veteran would have lived longer had he not been deconditioned due to his service-induced spine and nerve injuries. He also cited literature that mobility problems are associated with cardiovascular disease. Although the private physician opined that the Veteran's service-connected disabilities, particularly his lumbar degenerative disc disease and radiculopathy of the right lower extremity deconditioned the Veteran and hastened his death, the physician did not actually indicate that the Veteran's service-connected disabilities were the principal or contributory cause of death. Notably, for a disability to have substantially or materially contributed to death, it is not enough to show that it causally shared in producing death, but it must be shown that there was a causal connection. See 38 C.F.R.§ 3.312(c) (2017) see also Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Nonetheless, as the private medical opinion indicates that the Veteran's service-connected disabilities may have contributed to the cause of the Veteran's death, the Board finds that a VA medical opinion supported by complete, clearly stated rationale is needed to properly adjudicate the claim for service connection for cause of the Veteran's death. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to obtaining a medical opinion in this case, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. In this regard, the AOJ should give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C.A. § 5103(b)(3) (2017) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA), See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the appellant and her agent a letter requesting that the appellant provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the appellant furnish, or furnish appropriate (and, if necessary, updated) authorization to obtain pertinent, outstanding private records related to the Veteran's care. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completion of the above, and the receipt of any additional records, arrange to obtain from an appropriate VA physician a medical opinion addressing the relationship, if any between the Veteran's death and his military service. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager ), to include a complete copy of this REMAND, must be made available to the designated physician , and the opinion must reflect full consideration of the Veteran's documented medical history and the appellant's assertions. Following a review of all the relevant evidence and considering accepted medical principles, the reviewing physician should render opinion, consistent with sound medical principles, addressing the following: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities were the principal cause of death? In other words, was a service-connected disability, either singly or jointly with some other condition, the immediate or underlying cause of death or was etiologically related thereto? (B) If the answer to (A) is negative, then is it at least as likely as not (i.e., 50 percent or greater probability) that one or more of the Veteran's service-connected disabilities was/were a contributory cause of his death? In other words, did a service-connected disability or disabilities (1)) contribute substantially or materially to death, (2) combine to cause death, or (3) aided or lent assistance to the production of death? Note: a causal connection must be shown; it is not sufficient to show that the disability casually shared in producing death. In answering (A) and (B), the examiner must consider and discuss all pertinent evidence, to include the Veteran's death certificate, the January 2012 private medical opinion, and the appellant's contentions that the Veteran's mood disorder and/or his lumbar disc disease with radiculopathy of the right lower extremity caused or aggravated (worsened beyond natural progression) his heart condition or hypertension, resulting in his death. In this regard, both causation and aggravation must be addressed. Complete, clearly-stated rationale for all conclusions reached must be provided. In this regard, it would be helpful if the examiner referenced medical evidence of record, as well as studies and/or medical articles, as part of his or her opinion.. 4. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the appellant and her agent a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this remand is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This remand must be afforded expeditious treatment. The law requires that all claims 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). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).