Citation Nr: 1807347 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-16 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purposes of establishing entitlement to Dependency and Indemnity Compensation (DIC) benefits and/or death pension benefits. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1994 to April 2000. The Veteran died in June 2013. The appellant asserts that she should be recognized as the Veteran's surviving spouse for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The appellant failed to report for a Travel Board hearing in May 2016. Therefore, her request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). This matter was previously before the Board in June 2016, at which time it was remanded for additional development. As explained below, further development is needed in order to comply with the June 2016 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that a remand by the Board confers on the Veteran as a matter of law, the right to substantial compliance with the remand.) The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required on her part. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's Certificate of Death lists his immediate cause of death as cardiac arrhythmia due to dilated cardiomyopathy. In its June 2016 remand, the Board noted that the Veteran's service treatment records indicated he had tachycardia two times in December 1993, prior to active service. The Veteran's February 2000 separation examination documented that the Veteran had "high normal" blood pressure readings. The examiner noted that it may have been due to steroid medications or interferon. The Veteran was diagnosed with multiple sclerosis in service and his service treatment records indicate that he was on steroids as part of his course of treatment for this disease. On remand, the Board directed that an opinion as to whether the injury or disease that caused the Veteran's death was incurred or aggravated during active service should be obtained. A review of the electronic file reveals that the two medical opinions obtained in response to the June 2016 remand directives only address the question of whether or not the Veteran's multiple sclerosis was a primary or contributing cause of the Veteran's death. The opinions did not address the findings noted on the Veteran's separation physical examination; specifically his high normal blood pressure readings and the fact that he was taking medications which the examiner noted may be related to his high normal blood pressure readings; nor did the opinions consider any relationship between these findings and the cause of the Veteran's death. On remand, an addendum opinion must be obtained which addresses the findings of the Veteran's separation physical examination. Accordingly, the case is REMANDED for the following action: 1. Return the file to the VA examiner who furnished the December 2016 and March 2017 VA opinions for an addendum opinion. The electronic file and a copy of this remand must be made available to the examiner prior to the rendering an opinion. The examiner is asked to express an opinion as to whether it is at least as likely as not that the Veteran's cause of death was incurred or aggravated by active service or was caused or aggravated by a service-connected disability or disabilities. The examiner is asked to express an opinion as to whether it is at least as likely as not that a service-connected disability or disabilities caused or contributed to the cause of the Veteran's death. The examiner is asked to comment on the findings of the Veteran's February 2, 2000 separation physical examination report which noted "high normal BP (may be related to meds - steroids, interferon) and the relationship, if any, between these findings and the Veteran's cause of death, and/or the relationship between these findings and the Veteran's service-connected disabilities. More specifically, the examiner is asked to comment on what part, if any, these findings had in causing or contributing to the Veteran's cause of death. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles. However, if the examiner cannot respond to an inquiry without resort to mere speculation, she should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. 2. Then, readjudicate the appellant's appeal. If the benefit sought remains denied, provide the appellant and her representative with a Supplemental Statement of the Case. Thereafter, return the case to the Board, if otherwise in order. The appellant and her representative have the right to submit additional evidence and argument on the matter 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). _________________________________________________ G. A. WASIK 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) (2017).