Citation Nr: 1805161 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-04 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her brother ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to May 1955 and December 1957 to February 1974. He died in January 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A May 2015 hearing, at the RO, was held before the undersigned Veterans Law Judge; a transcript of the testimony is associated with the claims file. This matter was previously remanded by the Board in July 2015 and June 2017 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2)(2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. [CONTINUED ON NEXT PAGE] REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim so that the appellant is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Per his death certificate, in January 2009, the Veteran died from hepatic encephalopathy due to or as a consequence of complications with cirrhosis of the liver and chronic hepatitis C. He was not service-connected for any of those disorders. In the November 2017 appellant's post-remand brief, the appellant's representative raised a new argument and provided new evidence. Specifically, the representative argued that the Veteran's service-connected diabetes mellitus accelerated his death via the effects of the nonservice-connected hepatitis C. He further cited to an internet article indicating that "[h]epatitis C increases the risk of liver cancer, and people with both hepatitis C and diabetes are at far higher risk of developing liver cancer." Hepatitis C and Diabetes, August 28, 2014, Retrieved from https://www.liverdoctor.com/hepatitis-c-and-diabetes/November 29, 2017. Based on the evidence provided, a VA medical opinion is necessary to fully address the appellant's claim. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an addendum opinion from the June 2017 VA medical opinion provider. If that VA medical opinion provider is not available, refer the file to a medical professional of appropriate expertise to provide an addendum medical opinion. After reviewing all the evidence of record - to specifically include the November 2017 appellant's post-remand brief and the argument and evidence therein, please provide a medical opinion addressing the following: a. whether it is at least as likely as not that the Veteran's service-connected diabetes mellitus was the principal/primary cause of death (i.e. whether it singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto) b. whether it is at least as likely as not that the Veteran's service-connected diabetes mellitus was a contributory cause of death (i.e., whether it contributed substantially or materially to the cause of death; combined to cause death; aided or lent assistance to producing death. Note that 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. c. If his diabetes mellitus involved active processes affecting vital organs, careful consideration should be provided for a contributory cause of death, to determine whether there was general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. In answering these questions, the examiner must consider: (a) the November 2017 appellant's post-remand brief arguing that diabetes mellitus accelerated death by way of the nonservice-connected hepatitis C (claiming that Hepatitis C increases the risk of liver cancer and that people with both hepatitis C and service-connected diabetes are at a far higher risk of developing liver cancer) and the evidence submitted therein, (b) the lay evidence of record, (c) the November 2002 private medical opinion, and (d) any other relevant evidence of record. The examiner is asked to explain the reasons behind all opinions expressed and conclusions reached. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. The examiner is 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 examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence - to specifically include the new argument and internet based evidence submitted with the November 2017 appellant's post-remand brief. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).