Citation Nr: 1803606 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-14 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1950 to June 1953. His service medals and decorations include the Combat Infantryman Badge and the Purple Heart Medal. He died in February 2006. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the RO in Milwaukee, Wisconsin. In that decision, the RO addressed what it deemed an application to reopen a previously denied claim for service connection for the cause of the Veteran's death. Jurisdiction has subsequently transferred to the Detroit, Michigan RO. The Board notes, however, that after the RO's prior denial of this claim in an October 2006 rating decision, in an October 2006 statement, the Appellant requested adjudication of her March 2006 claim and wanted to know the status of her claim. She also stated that her husband passed way and requested entitlement to benefits. The Appellant's October 2006 statement illustrates her desire for appellate review of her claim; therefore, the Board construes the October 2006 statement as a timely disagreement (NOD) with the October 2006 rating decision. See 38 C.F.R. § 20.201 (prior to March 24, 2015) (NOD does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Consequently, that claim remained pending, and is the claim that is now before the Board. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). See also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009), aff'd, 619 F.3d 1368 (Fed. Cir. 2010) ("[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed") (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). In the Appellant's April 2014 substantive appeal (VA Form 9), she requested a Board hearing. However in a September 2017 statement, the Appellant withdrew her hearing request. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Here, the Appellant seeks service connection for the cause of the Veteran's death. The Veteran's death certificate shows that he died on February 2006 and that the immediate cause of death was occlusive coronary atherosclerosis and hypertension. At the time of the Veteran's death, he was service connected for residuals, shell fragment wounds of the right shoulder and neck (rated 30 percent disabling); residuals, shell fragment wounds of the right thigh, knee and leg region (rated 30 percent disabling); and wound of the right foot (rated 10 percent disabling). In this case, the Appellant has three contentions in support of her claim. First, she asserts that the Veteran's cause of death was due to his service-connected residuals of shell fragment wounds. See Appellant's statements dated July 2006 and May 2011. The Appellant indicates that prior to the Veteran's death, he was in pain from his shrapnel wounds and his body began to weaken due to his residuals of shell fragment wounds. Id. Furthermore, the Appellant contends that the Veteran's service-connected shrapnel wounds caused arterial damage which lead to his heart condition that caused his death. See Appellant's statement dated May 2011. Second, the Appellant contends that the Veteran had posttraumatic stress disorder (PTSD) due to his military service, which contributed to his death. Specifically, the Appellant claims that the Veteran's PTSD was due to his combat service and witnessing traumatic events during combat, such as witnessing children and women injured and killed. Third, the Appellant indicates that the Veteran's diabetes mellitus was due to several in-service chemical exposures, to include chemicals such as sulfonated petroleum oil, lead, and formaldehyde, which contributed to his death. See Appellant's statement dated November 2011. As noted above, the Veteran's service records reflect that he was awarded service medals and decorations demonstrating that he engaged in combat with the enemy. Furthermore, his service records reflect that he received wounds while stationed in Korea as a result of action with enemy forces. VA treatment records show diagnosis of diabetes mellitus and generalized anxiety disorder, and depressive disorder. See, e.g., VA treatment record dated August 2004 and December 2005. In May 2011, the Appellant submitted medical literature regarding the causation of atherosclerosis and suggesting that there is an association between atherosclerosis and the Veteran's service-connected residuals of shell fragment wounds. The Veteran's death certificate reflects that he died at Gerber Memorial Health Services. Although some records from this facility are in his claims file, all relevant treatment records (including the treatment records at the time of his death) do not appear to have been obtained. In sum, the evidence reflects that prior to the Veteran's death he was diagnosed with acquired psychiatric disorders, which the Appellant asserts that such disorders were due to his combat service. The Veteran's service records confirm that he was engaged in combat with the enemy. Furthermore, the Appellant asserts that the Veteran's acquired psychiatric disorders caused or contributed to the occlusive coronary atherosclerosis and systemic hypertension that were indicated as the cause of death on the death certificate. The Board notes that VA's own statements in connection with its rulemaking authority support an association between PTSD and hypertension. VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction; thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease to include hypertension. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). Moreover, the evidence indicates that the Veteran was stationed in Korea, and that he was diagnosed with diabetes mellitus prior to his death; however, there has been no development to determine whether the Veteran was exposed to chemicals during service that caused the diabetes mellitus that contributed to his death. The Appellant is competent to report her observations of the Veteran's symptoms and her reports suggest that the Veteran's death may have been due to his acquired psychiatric disorder and diabetes mellitus that were due to his military service. To this end, there has been no opinion obtained as to whether the Veteran's acquired psychiatric disorder and diabetes mellitus were related to service and contributed to his death and whether his service-connected disability contributed to his death. In light of the appellant's contention and possibly outstanding treatment records, the Board finds that remand is warranted to obtain a medical opinion that addresses the nature and etiology of the Veteran's cause of death and outstanding treatment records. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); Delarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical opinion or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. The above reflects that there is a reasonable possibility that such assistance would aid in substantiating the claim. Accordingly, the claim is REMANDED for the following action: 1. Submit the appropriate release of information forms where necessary and obtain private treatment records, to include treatment records from Gerber Memorial Health Services at the time of the Veteran's death in February 2006. 2. Undertake the appropriate development to render a formal finding as to whether the Veteran was exposed to the chemicals noted in the Appellant's November 2017 statement during the Veteran's military service, to include while stationed in Korea. 3. Then, request an opinion from a VA psychiatrist (who also has sufficient expertise to answer questions relating to the etiology of physical disorders) as to the cause or causes of the Veteran's death. The claims file must be sent to the psychiatrist for review. The VA psychiatrist should answer the following questions: (a.) Is it as least as likely as not (50 percent probability or more) that the Veteran's acquired psychiatric disorder (to include generalized anxiety disorder and depressive disorder) and diabetes mellitus had its/their onset in service, is/are related to the chemical exposure in-service, is/are related to his combat service, or was otherwise the result of a disease or injury in service? With regard to chemical exposure, the psychiatrist should consider any finding made by the RO in this regard. (b.) If found that any of the above disabilities had their onset in-service or related to service, then answer whether it is as least as likely as not (50 percent probability or more) that it/they substantially or materially contributed to the Veteran's death. (c.) Is it as least as likely as not (50 percent probability or more) that the Veteran's service-connected residuals, shell fragment wounds of the right shoulder and neck; residuals, shell fragment wounds of the right thigh, knee and leg region; and wound of the right foot, substantially or materially contributed to the Veteran's death. In rendering the above opinion, the psychiatrist must comment on (1.) the submitted medical literature regarding the causation of atherosclerosis; specifically, that the Appellant's assertions that the Veteran's service-connected shrapnel wounds caused his arterial damage which lead to his heart condition that caused his death and (2.) VA material cited above (Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004)) suggesting an association between PTSD and hypertension. The psychiatrist should also consider the debilitating effects of any service connected disability or any disability found to be related to service, from the viewpoint of whether there were resulting 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 VA psychiatrist must provide reasons for each opinion given. A complete rationale for all opinions is required. The psychiatrist should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the appellant and her representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. 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).