Citation Nr: 21014948 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-04 844 DATE: March 16, 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 in the United States Army from October 1953 to October 1955 and from January 1956 to January 1959. He died in March 2006. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The RO declined to reopen a previously denied claim for service connection for the cause of the Veteran’s death. This case was previously before the Board in April 2019. The Board found that new and material evidence had been received to reopen the claim for service connection for the cause of the Veteran’s death and remanded the claim to the agency of original jurisdiction (AOJ) for additional development and adjudication of the underlying merits of the claim. After taking further action, the AOJ denied the claim and returned the case to the Board. The Board notes that there has been some apparent confusion in this case with respect to the identity of the appellant’s proper representative. The record reflects that she initially appointed The American Legion as her representative in January 2009. Subsequently, however, in September 2016, she executed a new VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) appointing Virginia Department of Veterans Services (VDVS) as her representative. As no further appointments have since been made, VDVS remains her representative of record. Although the Board regrets the additional delay, further development is necessary to ensure the appellant due process and compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (2011). Entitlement to service connection for the cause of the Veteran’s death is remanded. In June 2020, the AOJ furnished the appellant a supplemental statement of the case (SSOC) addressing the issue on appeal. The cover letter associated with the SSOC indicates that it was copied to The American Legion, rather than VDVS. That needs to be corrected. The April 2019 Board remand asked the AOJ to obtain a VA medical opinion as to whether it was at least as likely as not that the Veteran’s cardiac arrest and/or end stage renal disease were causally related to his military service. The examiner was instructed to specifically address the Veteran’s in-service hospitalization for hepatitis; the appellant’s lay statements regarding her recollection of the Veteran’s statements with respect to in-service exposure to toxic substances, to include as a result of shrapnel; any reports of arrhythmias that occurred while in service; and contentions raised in a March 2019 written brief, including the contention that hepatitis causes an increased risk of heart and kidney disease. The AOJ obtained a VA medical opinion in May 2020. In response to the Board’s remand instructions, the examiner opined that the Veteran’s end stage renal disease was due to diabetes mellitus. The examiner also concluded that there was not enough evidence of record to support exposure to Agent Orange, and that the record failed to establish chronicity of the Veteran’s in-service hepatitis. In so doing, however, the examiner did not directly answer the question posed in the remand (whether it was at least as likely as not that the Veteran’s cardiac arrest and/or end stage renal disease were causally related to his military service). Accordingly, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Additionally, on remand, the appellant authorized the release of private medical records from Peekskill Hospital. It appears from the record that the AOJ was unable to successfully assist her in obtaining those records because she did not provide an address for the custodian of the records and the AOJ could not otherwise discern where the records might be held. Because the case otherwise needs to be remanded, the appellant should be invited to inform the AOJ if she has a current address for the custodian or otherwise knows where the records reside and, if so, to provide a new release with that information so that the AOJ can assist her. This matter is REMANDED for the following action: 1. Provide a copy of the June 2020 SSOC to the appellant’s correct representative (which is currently VDVS). 2. Ask the appellant if she has a current address for the facility that may currently possess the records of the Veteran’s care at Peekskill Hospital and, if she does, to provide a new release with that information so that VA can assist her in obtaining the records. If she provides the necessary release, assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and her representative should be notified. 3. After the foregoing development has been completed ot the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions in this case in May 2020. The examiner should be asked to review the expanded record and prepare a supplemental report specifically addressing the question of whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any disability that caused or contributed substantially or materially to the Veteran’s death had its clinical onset in service or was otherwise related to service If the May 2020 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement   of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, 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.