Citation Nr: 18160816 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-38 634 DATE: December 28, 2018 ORDER Entitlement to accrued benefits is dismissed. Entitlement to VA death pension benefits is dismissed. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is dismissed. REMANDED Entitlement to DIC under 38 U.S.C. § 1151 is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. On the record at a January 2018 videoconference hearing, the appellant withdrew her appeal seeking accrued benefits. As a matter of regular practice, the undersigned Veterans Law Judge (VLJ) discusses such withdrawal on the record to ensure that the appellant has a full understanding of the consequences of withdrawing a claim. Thus, there is no question of fact or law in this matter remaining for the Board to consider. 2. On the record at a January 2018 videoconference hearing, the appellant withdrew her appeal seeking VA death pension benefits. As a matter of regular practice, the undersigned Veterans Law Judge discusses such withdrawal on the record to ensure that the appellant has a full understanding of the consequences of withdrawing a claim. Thus, there is no question of fact or law in this matter remaining for the Board to consider. 3. On the record at a January 2018 videoconference hearing, the appellant withdrew her appeal seeking DIC under 38 U.S.C. § 1318. As a matter of regular practice, the undersigned Veterans Law Judge discusses such withdrawal on the record to ensure that the appellant has a full understanding of the consequences of withdrawing a claim. Thus, there is no question of fact or law in this matter remaining for the Board to consider. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the appellant’s claim seeking accrued benefits. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; see Acree v. O’Rourke, 891 F.3d 1009 (2018) (reiterating the holding in DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), which established that withdrawal of a claim must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant). 2. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the appellant’s claim seeking VA death pension benefits. Id. 3. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the appellant’s claim seeking DIC under 38 U.S.C. § 1318. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a Veteran who served on active duty from September 1955 to August 1958. The Veteran died in June 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in June 2017 (by another VLJ) to schedule the appellant for her requested hearing. In January 2018, a videoconference hearing was held by the undersigned; a transcript is in the record. 1. Entitlement to accrued benefits. 2. Entitlement to VA death pension benefits. 3. Entitlement to DIC under 38 U.S.C. § 1318. For the reasons outlined above, these issues are dismissed. REASONS FOR REMAND The Board finds that further development of the record is required to comply with VA’s duty to assist the appellant in the development of the facts pertinent to the matters remaining on appeal. As an initial matter, although the current record includes evidence that the Veteran was medically retired. There is no indication that Social Security Administration (SSA) disability benefits records have been sought by VA. Because SSA records are constructively of record, and because the Board is unable to find that such records would not be relevant, they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 1. Entitlement to DIC under 38 U.S.C. § 1151 is remanded. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran’s death certificate identifies the causes of his death as lung cancer and end stage renal disease; a June 2012 autopsy report concluded that there was no evidence of malignancy in the lungs, hilar lymph nodes, and adrenal glands. The appellant seeks compensation for cause of the Veteran’s death pursuant to multiple theories, including compensation under 38 U.S.C. § 1151. Specifically, she contends that the Veteran’s renal failure was due to (1) the delay in and/or failure to provide medical treatment for the Veteran’s heart condition by Phoenix, Arizona VA medical staff in March 2006; (2) the 2006 and 2009 heart surgeries performed at VA hospitals which resulted in infections and subsequent corrective surgeries; (3) hypertension, which was caused by his service-connected residuals of frostbite; and (4) the misdiagnosis of lung cancer, which resulted in the Veteran being denied a kidney transplant. In connection with the instant claim, the AOJ obtained several advisory medical opinions (which do not support the claim). The Board finds that none of the opinions of record are adequate because they fail to address all the advanced theories. Accordingly, an addendum opinion is necessary. The Board also notes that an April 2015 VA opinion provider opined that the primary causes of the Veteran’s renal disease are his nonservice-connected hypertension and diabetes mellitus. To date, no opinion has been obtained to determine whether the Veteran’s hypertension could have been caused or aggravated by his service-connected frostbite residuals and/or posttraumatic stress disorder (PTSD). See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider all theories of entitlement, raised either by the claimant or by the evidence, as part of the non-adversarial adjudication process). Accordingly, an opinion addressing these medical questions is also necessary. The Board further notes that the Veteran’s signed consent forms are not of record. On remand, these forms should be obtained and added to the claims file. The matters are REMANDED for the following action: 1. The AOJ should obtain for the record from SSA copies of its determination on the Veteran’s claim for SSA disability benefits (and all medical records considered in connection with this claim). 2. Obtain the full consent documents for the Veteran’s April 2006 and June 2009 surgeries. If such documents do not exist or cannot be obtained in their entirety, make a formal finding as to the unavailability of the record and inform the appellant pursuant to 38 C.F.R. § 3.159(e). 3. Obtain for the record copies of the complete clinical records of all VA treatment the Veteran received during his life from ALL VA facilities, to specifically include records from the April 2006 and June 2009 heart surgeries. 4. Then, arrange for the Veteran’s record to be forwarded for review by an appropriate physician to secure a medical advisory opinion in the matter of whether the cause of the Veteran’s death should be service-connected. Upon review of the entire record the examiner should provide an opinion that responds to the following: (a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s hypertension was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his service-connected frostbite residuals and/or PTSD? If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation. (b) If the answer to (a) is yes, is it at least as likely as not (a 50 percent or better probability) that the Veteran’s renal failure was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his hypertension? The opinion provider should consider and discuss the April 2015 VA opinion that the primary causes of the Veteran’s renal disease were hypertension and diabetes. (c) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s renal dysfunction was the result of DELAY IN TREATMENT of the Veteran’s heart condition in March 2006? In answering the above, the opinion provider’s attention is directed to the appellant’s argument that the VA Hospital in Phoenix, Arizona failed to treat the Veteran for his heart condition in March 2006 and instead instructed him to return to the Wisconsin VA for care; the surgery was eventually conducted in April 2006. (The Board notes here that the May 2013 and April 2015 VA medical opinions both note that the Veteran’s renal dysfunction began in March 2006, prior to the April 2006 heart surgery.) (d) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s renal dysfunction was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care and medical or surgical treatment or due to an event not reasonably foreseeable? In answering the above, the opinion provider’s attention is directed to the appellant’s argument that the April 2006 and June 2009 surgeries resulted in infections and subsequent corrective surgeries and a September 2009 private treatment record from St. Vincent Hospital, which states that the Veteran had “end-stage renal disease due to diabetic nephropathy and complications of aortic valve replacement surgery that occurred at the VA (Veterans Administration) in Milwaukee in late April or early May of this year….” (e) Is it at least as likely as not (a 50 percent or better probability) that lung cancer was misdiagnosed as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA or due to an event not reasonably foreseeable? If so, is there evidence showing that the Veteran was unable to receive a kidney transplant due to such misdiagnosis? In answering the above, the opinion provider’s attention is directed to the June 2012 autopsy report which concluded that there was no evidence of malignancy in the lungs, hilar lymph nodes, and adrenal glands. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel