Citation Nr: 18160521
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-05 416
DATE:	December 27, 2018
REMANDED
The claim of entitlement to service connection for the Veteran’s cause of death is remanded.
The claim of entitlement to Disability and Indemnity Compensation (DIC), under the provisions of 38 U.S.C. § 1151, for the cause of the Veteran’s death is remanded.
REASONS FOR REMAND
The Veteran had active military service from May 1957 to May 1960. The Veteran died in March 2008; the appellant is his widow. 
The appeal to the Board of Veterans’ Appeals (Board) arose from a November 2010 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for the cause of the Veteran’s death. In August 2011, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2013, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2014.
In November 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. 
In January 2016, the Board reopened the claim for the Veteran’s cause of death and remanded the claim for service connection, on the merits, for further evidentiary development. 
Notably, in August 2017, during the pendency of her appeal, in August 2017, the appellant raised the issue of compensation for benefits pursuant to 38 U.S.C. § 1151 due to alleged negligence from VA care. The RO, however did not address this issue in a separate rating decision, but, rather, addressed that issue in the March 2018 supplemental statement of the case (SSOC), which cited laws and regulations relevant to the Veteran’s cause of death claim under section 1151. The appellant, through her representative, has provided arguments for both issues.  
Under these circumstances, to include that the AOJ’s actions led the appellant o believe that the section 1151 matter was on appeal, the Board will take jurisdiction of this matter, as well.  See 38 C.F.R. § 20.204. See also Percy v. Shinseki, 23 Vet. App. 37, 46 (2009).
Unfortunately, the Board finds that further action in this appeal is warranted even though such will, regrettably, further delay an appellate decision on these matters. 
The appellant has alleged that the Veteran inhaled smoke and soot during his service in Korea while working on heating equipment, which she alleges led to his fatal cancer. Also, as noted in the January 2016 Board remand, a November 2015 private opinion indicated that there were some studies that did link cold weather to atherosclerosis. Notably, during the Veteran’s lifetime, service connection was established for residuals of cold weather injury.
Pursuant to the prior remand of the claim for service connection for the cause of the Veteran’s death, a VA medical opinion was provided in May 2017. The physician explained that the Veteran had a history of cardiac disease which may have contributed to his death. The Veteran’s service-connected cold injuries do not represent an established risk factor for development of cardiac disease. It is more likely that his known hypertension and hyperlipidemia were associated with development of cardiac disease in this Veteran. Therefore, it is less likely than not that the disabilities that caused or contributed substantially or materially to the Veteran’s death manifested during his service or were otherwise causally related to his active duty service, to include exposure to smoke fumes and chemicals. However, as requested by the Board, the examiner did not offer a rationale as to why the smoke fuels or chemicals did not cause his lung cancer or why it did not cause his cardiovascular disease that may have contributed to his death as indicated by the physician. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). See also Stegall v. West, 11 Vet. App. 268 (1998). Moreover, in providing the conclusory opinion that the Veteran’s death is not related to his service, to include his service-connected cold war injuries, the examiner did not address an article submitted by the appellant that cold exposure promotes atherosclerotic plaque growth and instability via UCP1-dependent lipolysis.
Given the above, the Board finds that a remand of the claim is needed to obtain a medical opinion addressing whether the Veteran’s cancer was directly related to service or, alternatively, to include his service-connected cold weather injuries, to specifically include that his cold weather injuries caused his cardiovascular disease which contributed to his death. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or to otherwise obtain an opinion when developing a service connection claim, it must provide or obtain one that is adequate for purposes of the determination being made).
As positive resolution of the claim for service connection for the cause of the Veteran’s death could render moot the claim for DIC under the provisions of 38 U.S.C. § 1151, this matter is being remanded, as well.
Prior obtaining the above-referenced medical opinion, to ensure that all due process requirements are met, and record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C. § 5103 (b)(1); but see also 38 U.S.C § 5103 (b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). 
Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103. 5103A; 38 C.F.R. § 3,156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. 
The matters are hereby REMANDED for the following action:
1. Send to the appellant and her representative a letter requesting that the appellant provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to any claim(s) on appeal that is not currently of record.  
Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period).
3.  If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an appropriate physician  addendum opinion(s) concerning the Veteran’s cause of death.
The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated physician, and the addendum opinion(s)  should include discussion of the Veteran’s documented medical history and appellant’s assertions.  
Based on consideration of all pertinent evidence, the physician should render opinion(s), consistent with sound medical judgment, addressing the following:
a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability(ies) that caused, or contributed substantially or materially to cause the Veteran’s death manifested during his service or was/were otherwise causally related to his active duty service, to include exposure to smoke fumes and chemicals; or, if not,  
b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any service-connected disability(ies)-in particular, cold injuries of the upper and lower extremities-caused, or contributed substantially or materially to cause, the Veteran’s death, to include whether any such disability(ies) caused the Veteran’s cardiovascular disease, which in turn contributed to the Veteran’s death.    
In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, to include the article titled “cold exposure promotes atherosclerotic plaque growth and instability via UCP1-dependent lipolysis,” as well as all lay assertions as to nature, onset and continuity of symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.
Complete, clearly-stated rationale for the conclusions reached must be provided.
5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).
6. After completing the above requested action, and any additional notification and/or development deemed warranted, adjudicate both claims on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file(s) since the last adjudication and legal authority.
 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Sarah Campbell

 For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.