BVA9504749 DOCKET NO. 91- 39 441 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to March 1973. This case arose from a rating decision of October 1990 from the St. Petersburg, Florida, Regional Office (RO), in which service connection for the cause of the veteran's death was denied. By means of a Remand decision dated in April 1992, the Board of Veterans' Appeals (Board) requested accomplishment of further development of the record and compliance with specific due process considerations. The RO rendered a rating decision dated in May 1993, which confirmed and continued the previous denial of service connection. REMAND Since the remand in this case, decisions of the United States Court of Veterans Appeals have directly impacted the Boards ability to adjudicate claims and develop evidence. Such facts were noted in the Informal Hearing Presentation of the appellant's representative. The appellant contends, in essence, that the RO erred when it denied service connection for the cause of the veteran's death. She specifically alleges that the medications taken by the veteran for his service-connected headaches were the cause of his death. Service connection will be granted for the cause of the veteran's death if it is shown that a service connected disability caused or contributed substantially or materially to cause the veteran's death; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (1993). At the time of the veteran's death in September 1990, service connection was in effect for migraine. The death certificate listed sepsis as the immediate cause of death, due to or as a consequence of hepatic abscess due to malnutrition. Another significant condition contributing to death but not resulting in the underlying cause of death was meningitis. An autopsy was not performed. In an April 1991 statement, the attending physician at the time of death indicated that the veteran had a "history of alcoholism and drug abuse (mainly prescription drugs for migraines)". He further stated that the veteran died of Klebsiella sepsis most likely contracted secondary to his alcohol and drug dependence which allowed him to neglect himself. However, the RO found this statement insufficient to demonstrate a relationship between the medications prescribed for the veteran's migraine headaches and his death. The RO accordingly determined that the prescription drugs for migraines did not substantially or materially caused the veteran's death. In addition the Board notes that the veteran was also taking medication for a non service-connected psychotic disorder. The statement prepared by the attending physician at the time of death failed to specify to what degree the abuse of prescription drugs for migraines, as opposed to prescription drugs for a psychotic disorder or alcohol abuse lead to the veteran's death. In view of the duty of the VA to assist the appellant in the development of facts pertinent to her claim, the Board is of the opinion that a review of the veteran's medical history by an appropriate specialist would be beneficial in assessing whether the veteran's migraine headache disability or treatment therefor, substantially or materially contributed to the veteran's death. The United States Court of Veterans Appeals (Court) has held the duty of VA to assist veteran's in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1993), as set forth by the Court in Littke v. Derwinski, 1 Vet. App. 90 (1990), requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, the case is REMANDED for the following: 1. The RO should procure copies of the medical records concerning the veteran from University Medical Center in Jacksonville, Florida. Specifically, all medical records that are in the possession of Dr. Bruce W. Meyers, M.D. to include terminal hospitalization records and any and all records prepared pursuant to treatment and diagnosis of the veteran. Further, the physician should be requested to indicate the basis of his determination that the veteran had a history of alcoholism and drug abuse which allowed him to neglect himself. Specifically, the doctor should identify the role migraine or medication for migraine played in producing death. The doctor should also answer the following: 1. When did the doctor first start to treat the veteran? 2. In what manor did migraine or medication for migraine produce death? 3. Did migraine or migraine medication cause sepsis or a hepatic abscess? 4. What was the medical cause of the hepatic abscess. 5. What was the medical cause of the sepsis? 2. After associating with the file any and all records obtained pursuant to the foregoing directive, the RO should arrange for the veteran's claim file to be reviewed by an appropriate VA physician. It is requested that the physician review the record and provide an opinion as to whether the medications for the veteran's service- connected migraine contributed substantially or materially to the veteran's death. The rationale for this opinion should be fully explained in detail. The claims folder should be made available to the physician prior to his or her determination. 3. Following completion of the above, the RO should review the appellants claim, and ascertain whether service connection can now be granted. If the decision remains adverse to the appellant, she and her representative should be provided with a reasonable period of time within which to respond thereto. The case should thereafter be returned to the Board for further review, as appropriate. 4. The regional office should request the appellant to execute a properly completed power of attorney form. (It is now over 4 years since the veteran's death.) The appellant need take no action until she is so informed. The purposes of this REMAND are to obtained additional medical evidence and to ensure compliance with due process considerations. (CONTINUED ON NEXT PAGE) H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).