Citation Nr: 1808655 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 04-40 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 1975 to May 1975. He died in February 1989. The appellant is his surviving spouse. These matters came before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In connection with the appeal, the appellant testified before a Member of the Board at a hearing in Washington, D.C., in March 2005. A transcript of the hearing is associated with the claims files. The appellant was informed by letter dated in April 2012 that the individual who presided at the hearing was no longer an employee of the Board. She was also informed of her options for another Board hearing. The appellant responded that she did not wish to appear at an additional hearing. This case was before the Board in January 2010, at which time the issues on appeal were denied. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The appeal was again denied by the Board in June 2012; the appellant appealed to the Court. In February 2013, the Court granted the parties' joint motion for remand (JMR) and returned the appeal to the Board. In November 2011, the Board referred the case to the Veterans Health Administration (VHA) for an advisory medical opinion. In December 2013, the Board remanded the appeal for development of the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the December 2013 remand, the Board noted that the most recent JMR indicated the parties' agreement that the Board did not adequately address the appellant's testimony that the Veteran was in and out of the hospital for asthma and that he had a chronic history of bronchial pneumonia. The parties specified that the Board failed to address the content of that testimony to the extent that it might be competent to demonstrate continuity of symptoms. The Board further notes that in a September 2013 brief, the appellant's attorney argued that the Veterans Health Administration opinion obtained in December 2011 was not adequate. Specifically, he asserted that the physician's rationale was insufficient to the extent that she merely stated that community acquired pneumonia was a common phenomenon and that pneumococcal pneumonia was the most common cause of community acquired pneumonia. He argued that merely because a condition was common did not mean that the condition was not related to service. He further maintained that the physician did not adequately address the appellant's lay statements concerning the Veteran's difficulties with asthma and pneumonia in the years following service. Finally, the Board noted that the Appellant's attorney submitted additional arguments and evidence in December 2013 while the appeal was pending at the Board. The additional evidence consisted of a declaration dated November 16, 2013, signed by the appellant, which states that the Veteran was treated at a VA hospital for asthma, bronchitis, and pneumonia. The appellant further stated that she recalled that the Veteran coughed and had problems breathing all of the time. In its December 2013 remand, the Board directed that the record be reviewed by a physician with the requisite expertise to opine on matters of pulmonology, in order to provide an opinion regarding whether the Veteran's death was related to service, to include the documented pulmonary disorders he experienced in 1975. The Board further directed that in discussing the rationale underlying his opinion, the physician should specifically comment on the contention that the Veteran had asthma chronically and continuously following service. In October 2017, a VA physician concluded that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He stated the following with respect to his rationale: My medical opinion is based upon the review of the C-File in VBMS/VVA, to include [the] above noted medical records, medical records in Capri, the death certificate, the cause of death as noted, listed as cardiac pulmonary arrest, aspiration pneumonia, STRS showing evidence of a diagnosis of "Bronchitis" on section B. Physical Profile of 4/22/1975, with evidence of a diagnosis of/and treatment for a "URI " on 2/20/1975 and evidence of a diagnosis of/and treatment for "Bronchitis" on 4/22/1975, with no evidence of any sequelae nor complications nor ongoing complaints of URI or Bronchitis following treatment nor evidence of a diagnosis of/nor treatment for asthma while in service nor within one year of military discharge. Unfortunately, this discussion essentially lists the records reviewed and does not adequately provide the underlying medical basis for the physician's conclusion. Moreover, the physician's statement that there was no evidence of ongoing complaints fails to account for the lay evidence of record contending that the Veteran had asthma chronically and continuously following service. As noted, the Board's 2013 remand specified that the physician must specifically comment on this contention. In light of these deficiencies, the Board concludes that clarification must be sought. The Board notes that further development and adjudication of the appellant's claim of entitlement to service connection for the cause of the Veteran's death may provide evidence in support of her claim for DEA. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Return the record to the physician who provided the October 2017 opinion with a request for clarification of his report. The physician should be requested to review the medical evidence, as well as the appellant's March 2005 testimony regarding respiratory illness experienced by the Veteran in the years following service, and the November 16, 2013 Declaration submitted by the appellant's attorney in December 2013. Following review of the claims file, to include the appellant's lay statements concerning the Veteran's treatment for respiratory illness during the years following service, the examiner should provide a discussion of the underlying medical basis for his opinion. In discussing the rationale underlying his opinion, the physician should specifically comment on the contention that the Veteran had asthma chronically and continuously following service. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Upon completion of the action above, review the physician's report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 (West 2012). _________________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).