Citation Nr: 18146977 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-36 372 DATE: November 2, 2018 REMANDED The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. The claim of entitlement to service-connected burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to May 1970, and from May 1980 to September 1980. He died in August 2012. The appellant is his adult brother. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania granted $300.00 in nonservice-connected burial benefits. In August 2014, the appellant filed a notice of disagreement (NOD), arguing that service-connected burial benefits should have been awarded. A statement of the case (SOC) addressing the claim of service connection for the cause of the Veteran’s death was issued in August 2015. He filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2015. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action in this appeal is warranted. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For the disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For the disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran’s death certificate lists acute coronary insufficiency as the immediate cause of death and non-insulin dependent diabetes mellitus as an underlying cause of death. At the time of his death, the Veteran was service-connected for bipolar disorder, which was rated as 30 percent disabling. The appellant argues that the Veteran’s service-connected bipolar disorder caused him to forget to take medications to treat his diabetes mellitus, which ultimately hastened his death. The appellant pointed to an October 2005 record noting that the Veteran demonstrated a “substantial decline in cognitive function.” Further, it was noted that the Veteran’s “. . . memory functions are significantly compromised.” Records also noted the Veteran was delusional and “. . . may need guidance with decision making.” To date, no VA medical opinion addressing the nature of the Veteran’s cause of death has been obtained. Notably, the appellant presented evidence indicating that the Veteran’s service-connected bipolar disorder may have prevented the Veteran from taking his diabetes mellitus medication, thereby possibly hastening his death. Accordingly, the Board finds that a VA medical opinion addressing whether the Veteran’s cause of death was related to service, to include his service-connected bipolar disorder, is warranted. See 38 U.S.C. § 5103A(a)(1); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Also on remand, 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) medical and/or employment 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. As a final matter, the Board notes that in the September 2013 decision, the AOJ granted nonservice-connected burial benefits. In August 2014, the Veteran filed a timely NOD with respect to the denial of service-connected burial benefits. While the August 2015 SOC addressed service connection for the cause of the Veteran’s death, it did not address service-connected burial benefits. As such, the AOJ must issue an SOC with respect to that claim, the next step in the appellate process. 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. The matters are hereby REMANDED for the following action: 1. Furnish to the appellant an appropriate SOC with respect to the claim for service-connected burial benefits, along with a VA Form 9, and afford him full opportunity to perfect an appeal as to that issue. The appellant is hereby reminded that to obtain appellate review of any matter not currently in appellate status-here, the matter referenced above-a timely appeal must be perfected within 60 days of the issuance of the SOC. 2. Furnish to the appellant 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. Specifically request that the appellant furnish, or furnish appropriate authorization to obtain, any outstanding, private (non-VA) medical records. 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). 3. 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. 4. After all available records and/or responses have been associated with the claims file, arrange to have an appropriate VA physician comprehensively review the record and provide opinion addressing the relationship, if any, between the Veteran’s service and his death. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to, and be reviewed by, the designated physician, and the opinion should include discussion of the Veteran’s documented medical history and all lay assertions, to include those advanced by the appellant. Following a review of all the relevant evidence and considering accepted medical principles, the reviewing physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that service-connected bipolar disorder caused or contributed substantially or materially to cause the Veteran’s death. In addressing the above, the physician must consider and discuss the appellant’s contentions that the Veteran’s bipolar disorder caused or aggravated his diabetes mellitus, resulting in his death. Specifically, the appellant asserts that the Veteran’s diminished mental capacity from his bipolar disorder caused him to forget to take medication to treat his diabetes mellitus. In addressing the above, the physician must consider and discuss all in and post-service medical and other objective evidence, as well as all lay assertions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for all conclusions reached must be provided. 5. 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 v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim(s) for which an appeal has been perfected, 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