Citation Nr: 1804731 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-23 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active service from January 1971 to October 1973. He died in September 2010; the appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction subsequently transferred to the Regional Office (RO) in Waco, Texas. The appellant and her daughter testified before the undersigned during a June 2016 travel Board hearing. A transcript of the hearing is of record. The record was also held open for 60 days; however, no additional evidence was received or associated with the record during that time. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the claim on appeal is decided. The appellant contends that the Veteran's death was related to his service-connected diabetes mellitus, type II (DM). A VA opinion was obtained in May 2014 in which the examiner stated that there was no medical record evidence to indicate that an etiology (to include but not limited to diabetes mellitus or myocardial infarction) other than COPD as listed in the Veteran's death certificate contributed to his cause of death was found. Subsequent to the May 2014 VA opinion, an amended death certificate was submitted in July 2014. The original certificate of death listed chronic obstructive pulmonary disease (COPD) as the immediate cause of death. The amended death certificate also listed diabetes type I as an other significant condition contributing to death but not resulting in the underlying cause of death. The Board notes that a contributory cause of death is inherently one not related to the principal cause. In determining whether any service-connected disability contributed to the Veteran's death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c) (1) (2017). As such, the Board finds that an addendum VA opinion should be sought on remand to address the amended certificate of death. Accordingly, the case is REMANDED for the following action: 1. The May 2014 VA opinion should be returned to the examiner (or, if that examiner is unavailable, a suitable substitute) for an addendum opinion as to: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected DM either caused or substantially contributed or materially contributed to the cause of his death. The examiner is asked to address the amended death certificate showing diabetes type I as an other significant condition contributing to death but not resulting in the underlying cause of death. The VA examiner is asked to explain fully the reasons behind any opinions offered and is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the expert's opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's electronic claims file, to include a copy of this REMAND, must be accessible to the VA examiner designated to provide the opinion; and the addendum should note review of the file. 2. After ensuring that the requested actions are completed, the AOJ should readjudicate the claim on appeal. If the benefit sought is not fully granted, the AOJ must furnish a supplemental statement of the case to the appellant and her representative, before the claims file is returned to the Board, 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 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 A. PAPPAS 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) (2016).