Citation Nr: 20002999 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-01 532 DATE: January 14, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to August 1984. The Veteran died in February 2014. The Appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for the cause of the Veteran’s death is remanded. The Veteran’s death certificate lists the following immediate causes of death: cardiopulmonary arrest, acute respiratory failure, severe primary pulmonary hypertension. Chronic obstructive pulmonary disease was listed as a condition leading to the cardiopulmonary arrest. In its September 2018 remand, the Board noted that at the time of the Veteran’s June 1984 service separation Report of Medical Examination, he was noted to have a probable inferior accessory lobe fissure in the right lower lung area projected near right CP angle on the frontal projection. Also noted was that the Veteran had served in the Republic of Vietnam where it is presumed he was exposed to certain herbicide agents, including Agent Orange. The Board requested that the Agency of Original Jurisdiction (AOJ) undertake appropriate development to obtain relevant treatment records, including records from Select Specialty Hospital of Kansas City and any autopsy reports. After the records development was completed, the AOJ was requested to forward the Veteran’s claims file to an appropriate VA specialist for him or her to determine whether the lung fissure noted at separation was etiologically related to the pulmonary causes of death listed on the Veteran’s death certificate and whether the Veteran had ischemic heart disease that was etiologically related to his cause of death. In an October 2019 correspondence, the Appellant noted that an autopsy report was not obtained at the time of the Veteran’s death. It was also noted that the Veteran “resided” in hospitals prior to his death. A General Release for Medical Provider Information forms show that the Veteran was at the Saint Luke’s Hospital of Kansas City from February 2, 2014 to February 14, 2014 and at the Select Specialty Hospital of Kansas City from February 14, 2014 to February 21, 2014. A correspondence to the AOJ, dated later in October 2019, from the VA Private Medical Records Retrieval Center (PMR) noted that a request for private treatment records was rejected because a copy of the Veteran’s death certificate was needed. A review of the record, however, fails to show that any additional attempt was made to obtain the records, to include providing the PMR with a copy of the Veteran’s death certificate which was of record at that time. While a medical opinion was obtained in October 2019, the Board observes that the AOJ failed to fully or substantially comply with the Board’s remand directives to obtain the Veteran’s private treatment records prior to obtaining a medical opinion. As such, another remand of this matter is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ should obtain the Veteran’s records from the two hospitals noted above utilizing the forms signed in October 2019, or through updated forms, if required. Consistent with 38 C.F.R. § 3.159(c), the AOJ’s attempts to obtain such records should continue until the records are obtained, or it is determined that the records don’t exist, or that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Utilizing the authorization forms signed by the Appellant in October 2019 (or, updated forms, if required), request records from Saint Luke’s Hospital of Kansas City for the dates of February 2, 2014 to February 14, 2014 and from Select Specialty Hospital of Kansas City for the dates of February 14, 2014 to February 21, 2014. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. If the records requested above are obtained and associated with the Veteran’s electronic claims file, arrange for the records to be reviewed by the VA specialist who provided the October 2019 medical opinion for an addendum opinion. If the prior VA specialist is not available, the file must be forwarded to another VA specialist to obtain the requested opinion. The electronic claims file must be reviewed by the medical provider and the report should note that review. The medical provider should respond to the following: a) At the time of his death, did the Veteran have ischemic heart disease? If ischemic heart disease is found, the medical provider is asked to express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s ischemic heart disease caused or contributed substantially or materially to his death. b) Whether it is at least as likely as not (50 percent or greater probability) that the lung fissure noted at the Veteran’s separation examination caused or contributed substantially or materially to his death. A complete rationale for all opinions expressed should be set forth in the reviewer’s report. If the medical provider cannot provide a rationale without resorting to speculation, the reviewer should explain why it is not possible to provide and opinion. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.