Citation Nr: 1806628 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-17 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to July 1989, to include service in Vietnam from June 1968 to June 1969. He died in November 2005, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. The RO in Philadelphia, Pennsylvania certified appeal to the Board. The appellant testified before the undersigned Veterans Law judge in May 2014; a transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains the May 2014 hearing transcript in addition to documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required in this appeal to obtain an adequate VA opinion and compliance with prior Board remand. A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board previously remanded these issues in April 2015 to obtain a VA opinion regarding whether the Veteran's service-connected coronary artery disease caused or substantially and materially contributed to the Veteran's death. The examiner was asked to consider whether his coronary artery disease aided or lent assistance to the production of his death. A June 2016 VA examiner opined that it was less likely than not that the Veteran's service connected condition caused his death. The examiner noted the Veteran's probable cause of death and his cause of death as listed on his death certificate of pulmonary complications. The examiner found that there was a delay between the Veteran's stent placement prior to his lung transplant and the ultimately fatal infection of his transplanted left lung. The examiner indicated that this delay did not contribute to the Veteran's death. However, the examiner failed to adequately address the Veteran's coronary artery disease in general and whether it substantially or materially contributed to or accelerated his death, and focused only on the stent placement. Therefore, the Board finds that remand is required for a new opinion. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims folder to the 2016 VA examiner, if available, for an opinion as to the cause of his death. If not available, another qualified examiner may render the requested opinions. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must opine whether it is at least as likely as not (a 50 percent probably or greater) that the Veteran's coronary artery disease; 1) contributed substantially or materially to his death; 2) combined to cause his death; or 3) aided or lent assistance to the production of his death. The examiner must address the delay in the Veteran's lung transplant caused by his need for stent placement. 2. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the appellant and her representative. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).