Citation Nr: 1803875 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-06 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from August 1954 to August 1957. The Veteran passed away in June 2009 as a result of congestive heart failure according to his death certificate. The appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decisional letter by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, which denied the appellant's claim for entitlement to Dependency, Indemnity and Compensation (DIC) benefits. Jurisdiction of the matter is now with the RO in Roanoke, Virginia. The Board notes that the appellant's claim for death pension benefits has become moot, as the claim was granted in a December 2013 decisional letter issued by the RO. In subsequent decisional letters dated May 2014 and July 2015, the RO increased the appellant's death pension benefits due to a change in status of dependents. Thus, this issue is not before the Board. The Board further notes that prior to her current representation, the appellant was represented by the Virginia Department of Veterans Services (VDVS). VA received a signed VA Form 21-22 in February 2014 changing representation from VDVS to The American Legion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant seeks service connection for the cause of the Veteran's death. Regrettably, a remand is required to obtain a VA medical opinion. The Veteran in this case had been awarded service connection for a back disability as 10 percent disabling, effective as of August 2, 1957, from a December 1957 rating decision. In May 1960, the Veteran renounced compensation for his back disability. In May 1981, the Veteran then requested to reinstate disability benefits for his back condition. An August 1981 rating decision assigned a 20 percent disability rating for the Veteran's back condition, effective as of May 27, 1981. In September 1982, the RO implemented the Board's August 1982 decision to increase the evaluation of the Veteran's back condition to 30 percent disabling, and assigned an effective date of May 27, 1981. The Veteran's back disability was the only disability that he had been awarded service connection. The Veteran's death certificate shows that his cause of death was congestive heart failure. The appellant has asserted that the cause of the Veteran's death was related to his service-connected back disability. Specifically, she has provided a September 2011 private treatment record from Dr. J.S. that appears to suggest that the residual effects of the Veteran's service-connected back disability were a major contributing factor in his death. Specifically, it appears that Dr. J.S. is suggesting that the deterioration of the Veteran's health stemmed from the service-connected back disability, ultimately causing his death. In a subsequent record dated August 2015 from Dr. J.S., he indicates that the Veteran was diagnosed with hypertension and chronic obstructive pulmonary disease (COPD), and concludes that the totality of the Veteran's medical problems materially contributed to his death. The Board finds that the August 2015 opinion of Dr. J.S. is inadequate, as it does not provide a rationale. Furthermore, the Board finds that clarification is needed with regard to the September 2011 opinion provided by Dr. J.S., as it is unclear as to whether he is concluding that the Veteran's death was related to his service-connected back disability. The record does not include any other medical opinion that addresses the Veteran's cause of death, specifically with regard to whether his death was related to his service-connected back disability. Thus, as the record does not include a clear opinion as to the cause of the Veteran's death, and the Board lacks the medical expertise to provide an opinion, remand for a VA addendum medical opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to an appropriate examiner for review and for an opinion on the cause of the Veteran's death. After reviewing the Veteran's claims folder, the reviewing examiner should provide opinions on the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's congestive heart failure was caused by service-connected back disability? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's congestive heart failure was aggravated beyond the normal course of the condition (i.e., any worsening of the condition) by service-connected back disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected back disability was a principal (primary) or contributory (contributed materially or substantially; combined to cause death; aided or lent assistance to the production of death) cause of the Veteran's death? A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 2. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing all indicated development, the appellant's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the appellant and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. 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 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).