Citation Nr: 21000644 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-62 441A DATE: January 5, 2021 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 July 1975 to February 1977. He died in December 2017. The appellant is his surviving spouse. In August 2020, the Board remanded the matter to obtain a VA medical opinion. After obtaining a VA medical opinion, the RO issued a supplemental statement of the case (SSOC) in October 2020. The Board notes that in November 2020 the appellant’s attorney submitted a Request for Higher Level Review (VA Form 20-0996) of the October 2020 SSOC that denied service connection for the cause of the Veteran’s death. However, the appellant’s attorney did not check the “Opt-in from SSOC” box on this form. Subsequently, the RO sent the appellant a letter advising her and her attorney that her Higher-Level Review request could not be accepted. In the letter, the RO explained that in the appellant’s November 2020 submission of his VA Form 20-0996, she failed to check the box to “Opt-in from the SSOC”. Essentially, the RO did not permit the Veteran to opt-in to the AMA because she did not check the box to opt-in on her claim form. To date, the appellant has not re-submitted her VA Form 20-0996 with the appropriate box checked. As such, the Board has jurisdiction to review this claim under the legacy framework. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. 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; 38 C.F.R. § 3.159. 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). In its August 2020 remand, the Board noted that service-connection was established for posttraumatic stress disorder (PTSD) at the time of death and private medical records documented complaints of mental health symptoms leading up to his December 2017 death. On remand, the Board directed that an opinion addressing whether the Veteran’s cause of death was related to service, to include his service-connected PTSD, be obtained. In September 2020, a medical opinion was obtained for the appellant’s claim. The examiner did not follow the remand directives as the examiner did not provide a rationale as to why the examiner opined the Veteran’s PTSD less likely than not caused or contributed substantially or materially to the cause of the Veteran’s death. The examiner merely noted that the Veteran’s PTSD was independent and not related to the Veteran’s history of liver cirrhosis, nonalcoholic steatohepatitis, and diabetes. The examiner failed to address how the Veteran’s PTSD could have been the cause of non-compliance with medication and resistance to treatment for liver cirrhosis, nonalcoholic steatohepatitis, and diabetes and how that may have caused or contributed substantially or materially to the cause of the Veteran’s death. The examiner also failed to comment on the October 2017 and December 2017 medical records or the specific comment “He was much more depressed overnight and stated ‘why won’t they just let me die? I’m so tired of being miserable.’” The examiner did opine that the Veteran’s depression and thoughts of dying were less likely than not the cause of his death but provided no rationale for this opinion. Therefore, the Board finds the examiner did not follow the directives of the August 2020 remand. The Board finds the VA examiner’s medical opinion of September 2020 to be inadequate due to the lack of rationale provided and neglecting to comment on the October 2017 and December 2017 treatment records. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the Board finds that these specific directives were not followed and this development has not been completed on the remanded claims, additional remand is required for full compliance with the Board’s previous remand instructions. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who conducted the September 202020 medical opinion for service connection for cause of death. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the September 2020 examiner is no longer available, provide the Veteran’s file for a medical opinion with another examiner with similar training and expertise, so as to render the requested opinions. The examiner should provide an opinion, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that service-connected PTSD caused or contributed substantially or materially to the cause of the Veteran’s death. The examiner should comment on pertinent medical records, including October 2017 to December 2017 private medical records documenting hospitalization leading up to the Veteran’s death, including the comment “He was much more depressed overnight and stated ‘why won’t they just let me die? I’m so tired of being miserable.’” The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, the examiner should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.