Citation Nr: 18144446 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-18 509 DATE: October 25, 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 January 1960 to April 1964. He died in June 2010. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2012 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant filed a notice of disagreement (NOD) in November 2012. The RO issued a statement of the case (SOC) in March 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in May 2013. In April 2015 and June 2017, the Board remanded the claims on appeal for development. After accomplishing further action on each occasion, the AOJ continued to deny the claim (as reflected, most recently, in a June 2018 supplemental SOC)) and returned these matters to the Board for further appellate consideration. Unfortunately, the Board finds that further AOJ action in this 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). Most recently, in the June 2017 remand, the Board sought a medical opinion addressing the etiology of the Veteran’s cause of death. The Board requested the examiner opine as to whether it was at least as likely as not that schizophrenia was the immediate or underlying cause of death or was etiologically related to the death. Further, the examiner was to opine as to whether it was at least as likely as not that schizophrenia contributed materially or substantially to the cause of death, combined to cause death, or aided or lent assistance to produce death. The examiner was asked to specifically address whether schizophrenia contributed to the Veteran’s coronary artery disease or ischemic cardiomyopathy. A VA medical opinion was provided in June 2018. The examiner noted review of the record and summarized several pertinent treatment records. The examiner opined that: “[c]onsistent with the prior medical opinions and BVA decisions, it is my professional opinion that the evidence of record is insufficient to support with 50% or greater certainty that the Veteran’s diagnosed schizophrenia had onset within one year of active military service. The evidence of record is insufficient to support with 50% or greater certainty that the Veteran’s diagnosed schizophrenia has a nexus to service in the US Marine Corps.” The Board finds that the June 2018 examiner’s conclusions are not responsive to the June 2017 remand directives. To that end, the examiner did not opine as to whether the Veteran’s schizophrenia was at all related to his death. Rather, the examiner offered opinions as to whether schizophrenia was related to military service. Under these circumstances, the Board concludes that substantial compliance with the June 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. Further, as explained in the June 2017 remand, the claim for burial benefits is inextricably intertwined with the claim for service connection for the cause of the Veteran’s death. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As claim for service connection for the cause of the Veteran’s death is being remanded, the Board will defer adjudication of the burial benefits claim pending development of the service connection claim. 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 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 any 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 June 2018 VA examiner a further addendum opinion addressing 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. 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, consistent with sound medical judgment, addressing the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that schizophrenia was the immediate or underlying cause of the Veteran’s death or was otherwise etiologically related to the death; and, if so, b. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that schizophrenia contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. The physician is specifically asked to address whether schizophrenia contributed to the Veteran’s coronary artery disease or ischemic cardiomyopathy. 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 claims 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