Citation Nr: 18140459 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 13-30 305 DATE: October 3, 2018 REMANDED The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. The claim of entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1972 to December 1976, from September 1977 to October 1979, from July 2004 to October 2005, and from October 2009 to December 2010, with additional reserve service. The Veteran died in January 2012. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from two decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a June 2012 decision, the RO denied the claim for burial benefits. The appellant filed a notice of disagreement (NOD) in June 2012. In an October 2012 decision, the RO, inter alia, denied the claim for service connection for the cause of the Veteran’s death and accrued benefits. The appellant filed an NOD with all denials in October 2012. The RO issued a statement of the case (SOC) in September 2013 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2013. In December 2016, the Board denied the claim of entitlement to accrued benefits and remanded the claims for service connection for the cause of the Veteran’s death and for burial benefits for further development. In September 2017, the Board again remanded those claims for further development. After accomplishing further action, the AOJ continued to deny the claims (as reflected in an August 2018 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. Unfortunately, the Board finds that further AOJ action ion the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2017, the Board remanded the claim of service connection for the cause of the Veteran’s death, inter alia, to obtain a VA medical opinion. The examiner was to opine as to whether there was an additional disability due to disease or injury that was superimposed upon the Veteran’s pectus excavatum defect during service. Further, the examiner was to opine as to whether it was at least as likely as not that the Veteran’s coronary artery disease (CAD) was caused or aggravated by any period of active duty service. In an August 2018 VA medical opinion, the physician opined that there was no evidence to substantiate the Veteran’s pectus excavatum was permanently aggravated beyond normal progression during military service. The physician examiner also opined that it was less likely than not that the Veteran’s activation in the reserves resulted in his ischemic heart disease being aggravated beyond normal progression causing death. The examiner offered rationales to support these opinions. The Board finds that the August 2018 examiner’s conclusions are not entirely responsive to the September 2017 remand’s directives. To that end, the examiner did not address whether there was an additional disability due to disease or injury that was superimposed upon the Veteran’s pectus excavatum defect during service. Further, the examiner only opined whether the Veteran’s heart disability was aggravated beyond normal progression during reserve service. However, the remand requested an opinion as to whether CAD was caused or aggravated beyond normal progression during any period of active service, not just reserve service. Under these circumstances, the Board concludes that substantial compliance with the January 2017 remand directives for the claim on appeal not been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, further remand of this matter to obtain the previously requested opinions is necessary. See Stegall, supra. As a final matter, the claim for burial benefits is inextricably intertwined with the claim for service connection for the cause of the Veteran’s death as the grant of service connection would impact the claim for burial benefits. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, the Board will defer adjudication of the claim for burial benefits. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. The matters are hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that the appellant provide additional information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the appellant responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the August 2018 VA examiner a further addendum opinion addressing the claim for service connection for the cause of the Veteran’s death. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible). The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. The physician must provide opinions addressing the following: a. For pectus excavatum, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder was subject to superimposed injury or disease during the Veteran’s active duty service. b. For coronary artery disease, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused OR aggravated beyond its natural course during the Veteran’s active duty service. Both causation and aggravation must be addressed. In rendering the requested opinions, the physician must specifically consider and discuss all medical and other objective evidence, as well as all lay assertions. The physician is advised that the Veteran and the appellant was/is each competent to report matters within his or her personal knowledge, to include symptoms and events experienced or observed (respectively), and that lay assertions in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel