Citation Nr: 1803437 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-00 197A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 3. Whether there was clear and unmistakable error (CUE) in an August 1995 rating decision that assigned a 50 percent disability rating for posttraumatic stress disorder (PTSD). 4. Whether there was clear and unmistakable error (CUE) in a December 1997 rating decision as it pertains to the assignment of an effective date of April 4, 1997, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty service from March 1967 to March 1970. He died in February 2007. The appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana and a March 2010 Administrative Review by the Director of Compensation and Pension Service. The August 2007 rating decision denied service connection for the cause of the Veteran's death, entitlement to DIC pursuant to 38 U.S.C.A. § 1318, and entitlement to accrued benefits. The March 2010 Administrative Review, in pertinent part, found the August 1995 and December 1997 rating decisions were not clearly and unmistakably erroneous for not granting a total schedular or TDIU rating for PTSD, and for an assigning an effective date earlier than April 4, 1997 for the grant of a TDIU rating , respectively. The appellant also initiated an appeal of the RO's finding that an April 1972 rating decision was not clearly and unmistakably erroneous for assigning noncompensable disability evaluations for service-connected scars, but an April 2012 Board decision denied her appeal. Hence, that matter is not before the Board. In June 2011 and April 2012, the Board remanded the claims on appeal for additional development. In March 2015, the Board issued a decision which denied service connection for brain cancer for accrued benefits purposes, which denied service connection for the cause of the Veteran's death, and found that an August 1995 rating decision which granted a 50 percent rating for PTSD was not clearly and unmistakably erroneous. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court issued an order which granted a November 2015 joint motion for the parties for remand and for partial vacatur of the Board's March 2015 decision. The Board decision was vacated to the extent that it denied service connection for the cause of the Veteran's death, and to the extent that it found that an August 1995 rating decision which granted a 50 percent rating for PTSD was not clearly and unmistakably erroneous. The joint motion notes that the appellant abandoned her claim of entitlement to service connection for brain cancer for accrued benefits purposes. The March 2015 Board decision also remanded the appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318, and the claim that there was CUE in a December 1997 rating decision which assigned an effective date of April 4, 1997 for the award of a TDIU. A December 2015 supplemental statement of the case continued to deny both claims. In February 2016, the Board remanded the claims for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that further development is warranted before the claims on appeal may be properly adjudicated. The November 2015 joint motion noted that there were missing VA medical records potentially relevant to the claim as to whether there was CUE in an August 1995 rating decision that assigned a 50 percent disability rating for PTSD. The records identified were an October 28, 1994 VA recreational therapy assessment and a November 15, 1994 VA neuropsychological testing report. The Board's February 2016 remand requested that the RO obtain these records. Moreover, the November 2015 joint motion noted that a December 2013 VA examiner did not acknowledge or discuss the significance of two VA treatment records that were potentially pertinent to the cause of death claim. The records identified were a January 5, 2007 CT scan which identified "atherosclerotic [sic] of the infrarenal aorta" and stated [R]evealed abn; clinical correlation needed" and an abnormal January 3, 2007 echocardiogram. The Board's February 2016 remand noted that further VA examination was warranted with instructions for the examiner to specifically review these records in rendering an opinion. In an April 2017 VA examination report, the examiner stated the following: "I was unable to find objective documentation of the November 15, 1994 neuropsychology report and any EKGs or ECHOs done January 3-5, 2007. If these records are available...I would be happy to review these records and modify my opinions, if appropriate." None of the records noted above have been associated with the claims file. It is unclear if the RO did try to obtain any of these specified records and whether they were or were not available. The RO did not prepare a formal finding of unavailability memorandum which provided details of the efforts it took to obtain these records. Thus further remand is warranted to obtain these records, if possible, with documentation of all actions taken. The claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is inextricably intertwined with the claim alleging CUE in the December 1997 rating decision, and consideration of that matter must be deferred pending resolution of the CUE matters. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the following: (a) An October 28, 1994 VA recreational therapy assessment. (b) A November 15, 1994 VA neuropsychological testing report. (c) A January 5, 2007 VA CT scan report. (d) A January 3, 2007 VA echocardiogram. 2. If the AOJ determines that any of the records do not exist and/or that further efforts to obtain them would be futile, the AOJ must prepare a formal finding of unavailability and associate it with the claims file. The appellant must also be notified of such unavailability, the steps taken and responses received in attempting to obtain such records, and all other information required by 38 C.F.R. § 3.159(e). 3. If any of the missing records are obtained, and in particular the January 2007 VA CT scan and/or echocardiogram, forward the claims file to the April 2017 VA examiner for a supplemental opinion. The examiner should provide an opinion as to whether it is at least as likely as not (10 percent probability or greater) that the Veteran had coronary artery disease and if so, whether such caused or contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to produce death. 4. After completing the aforementioned, and any further development deemed necessary, readjudicate the claims on appeal. If any 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. §§ 5109B, 7112 (West 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).