Citation Nr: 21075887 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-25 354 DATE: December 21, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death, for purposes of receiving Dependency and Indemnity Compensation (DIC), is remanded. REASONS FOR REMAND Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who served on active duty from January 1951 to May 1952, was clearly a credit to the United States Navy, and his service to our country is greatly appreciated. The Veteran unfortunately died in May 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in July 2020, March 2021, and August 2021. In October 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See October 2019 Board Hearing Transcript. Entitlement to service connection for the cause of the Veteran's death, for purposes of receiving DIC, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of three prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the August 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in August 2021, the Board instructed the AOJ to obtain the entirety of the Veteran's service personnel records, service treatment records (STRs), and VA treatment records. However, no such records have been associated with the claims file, nor is there any indication that the AOJ requested such records. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to allow the AOJ to attempt to rebuild the Veteran's claim file, to include obtaining the entirety of the Veteran's VA treatment records, service personnel records, and STRs. See Stegall v. West, supra. Additionally, the Board notes that a VA medical opinion regarding the Veteran's cause of death was obtained in June 2021. See June 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). However, as noted above, potentially pertinent records may not have been associated with the electronic claims file. As such, if additional records pertinent to the Appellant's claim are associated with the claims file on remand, an addendum opinion should be obtained regarding the Veteran's cause of death. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board notes that the evidence indicates, in November 2020, March 2021, and August 2021, the AOJ requested that the appellant provide any pertinent documents in her possession, including a copy of the Veteran's death certificate, as well as the names, addresses, and approximate dates of treatment of all medical care providers that provided the Veteran with treatment pertinent to her claim. The AOJ also provided the appellant and her representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on her behalf. See November 2020 VA Correspondence; March 2021 VA Correspondence; August 2021 VA Correspondence. To date, the appellant has not responded to these requests. VA's duty to assist is not a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where they may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent records. The appellant is cautioned that failure to cooperate with any requested development may result in the denial of her claim. 38 C.F.R. § 3.655. Accordingly, the matter is REMANDED for the following action: 1. Contact the appellant and afford her an opportunity to provide any pertinent documents within her possession, including a copy of the Veteran's death certificate, and to identify any pertinent medical records, whether VA or private. Thereafter, with the appellant's assistance as appropriate, obtain and associate with the electronic claims file the entirety of the Veteran's service personnel records, STRs, and VA treatment records, as well as any pertinent records identified by Appellant. Pursuant to 38 C.F.R. § 3.159(c), any efforts to secure these records MUST be documented in the electronic claims file, and the Appellant MUST be informed if any records are unavailable to be secured. 2. After completing the development above, and any additional development warranted by the record, IF AND ONLY IF ADDITIONAL RECORDS PERTINENT TO THE APPELLANT'S CLAIM ARE OBTAINED, return this matter to the June 2021 examiner and obtain an addendum opinion regarding the contribution, if any, of the Veteran's service-connected conditions to his cause of death. The entire claims file must be provided to, and reviewed by, the examiner. The examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a service-connected condition, including any embedded shrapnel associated with the Veteran's service-connected right thigh laceration with injury to muscle group XV, contributed substantially or materially, combined to cause, or aided or lent assistance to the production of death. The examiner is advised that the appellant is competent to report the Veteran's symptoms and history of which she is personally aware, and such report must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects any such reports, they must provide a reason for doing so. The term "at least as likely as not" does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, Associate Counsel 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.