Citation Nr: 1806999 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-21 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 (2012). REPRESENTATION Appellant represented by: Brendan B. Garcia, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from March 1945 to July 1947. The appellant is the Veteran's surviving spouse. This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims (Court) regarding a Board decision rendered in October 2016. This matter was originally on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). In March 2013, the appellant testified at a videoconference hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant seeks to establish service connection for the cause of the Veteran's death. She contends that the Veteran's service-connected chest condition caused or contributed to his death from his terminal metastatic prostate cancer. In addition, the appellant seeks DIC pursuant to 38 U.S.C. §1318 (2012). In a decision dated in October 2016, the Board denied the appeal. The appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the parties, the Secretary of VA and the appellant, through her attorney, filed a joint motion for remand (JMR) to vacate the Board's October 2016 decision. In a July 2017 Order, the Court granted the motion. The parties agreed that the Board erred by failing to ensure compliance with its December 2014 remand instructions. Specifically, in December 2014, the Board instructed the AOJ to seek "documentation including the disability rating the Veteran received throughout his lifetime for his service-connected inactive pulmonary tuberculosis." The claims file had been rebuilt and clarification was necessary as to the rating the Veteran was receiving throughout his lifetime. The parties noted that on remand, the Board should ensure substantial compliance with the terms of its December 2014 remand. It is not clear from the rebuilt claims file whether the RO has associated all relevant documents stored on VA computers with the rebuilt claims file. This is particularly important in this case, as it is unclear from the evidence in the rebuilt claims file as to when the Veteran's disability rating changed from 100 percent to zero percent. Although the RO undertook efforts to locate, and then to rebuild, the claims file, there is no explanation of the exhaustiveness of rebuilding efforts to permit an adequate determination that the contents missing from the rebuilt claims file have been duly pursued and are confirmed as unobtainable through any reasonably available avenue. The Board must be able to confirm that the necessary verifiable due diligence has been exercised in rebuilding the claims folder in the absence of success in locating the original claims folder. Dixon v. Derwinski, 3 Vet. App. 261 (1992). As such, the case must be remanded for additional development. The parties also agreed that the Board provided only a conclusory statement in awarding the March 2015 VA medical opinion greater probative value than the private opinion. As the case is being remanded for additional development, the Board will take the opportunity to obtain an additional medical opinion as to whether the Veteran's service-connected chest condition caused or contributed to his death. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should provide documentation indicating the disability rating the Veteran received throughout his lifetime for his service-connected inactive pulmonary tuberculosis. All attempts should be documented in the claims file and should any records be determined to be unavailable, a memorandum should be associated with the claims file detailing all efforts to obtain the records and explaining why further attempts to obtain the missing records would be futile. If VA attempts to obtain any outstanding records which are unavailable, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). Thereafter, using the information in the record (including but not limited to the November 1947 notification letter indicating that the Veteran was awarded compensation in the amount of $138.00 from July 17, 1948 on account of disability resulting from a chest condition; the C & P Master Record - Audit Writeout indicating that the Veteran was receiving $67.00 per month effective February 1, 1960, $70.00 effective July 1, 1970, and $67.00 effective October 1, 1970; letters from VA dated in December 2009 and November 2010 indicating that the combined service-connected evaluation was zero percent and that the monthly award was $67.00; and the December 2010 letter noting that the Veteran was not considered to be totally and permanently disabled due to his service-connected disabilities), the AOJ should make a determination as to whether the Veteran received a 100 percent rating for pulmonary tuberculosis in the 10 years prior to his death for tuberculosis. 2. The AOJ should refer the Veteran's file to a VA examiner, preferably a pulmonologist, for an opinion as to the cause of his death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's treatment records, and his amended death certificate. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected pulmonary tuberculosis (a) contributed substantially or materially to his death; (b) combined to cause his death; or (c) aided or lent assistance to the production of his death. In rendering this opinion, it is not sufficient to show that the pulmonary tuberculosis shared in producing death, but rather it must be shown that there was a causal connection. The examiner is asked to consider a letter dated in December 2011 from the Veteran's Hospice Director, who opined that the Veteran's compromised lung function and debilitated state from tuberculosis contributed to his death. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence associated with the claims file since the most recent Supplmental Statement of the Case (SSOC). If any benefit sought is not granted, the appellant should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. §§ 5109B, 7112 (2012). _________________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).