Veteranclaims’s Blog

November 24, 2021

Single Judge Application; dependency and indemnity compensation (DIC) under 38 U.S.C. § 1310; DIC benefits under 38 U.S.C. § 1151; To receive DIC benefits, a claimant must show that his or her veteran spouse , child, or parent died from a service-connected disability, 38 U.S.C. § 1310; see Dyment v. West, 13 Vet.App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); This means that a service-connected disability or illness must have either directly caused the veteran’s death or contributed to it in a significant way, 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (2021);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:56 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6269
FANNIE ACOFF, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
LAURER, Judge: Appellant Fannie Acoff is the surviving parent of United States Army
veteran Samuel L. Acoff. She appeals, through counsel, a July 24, 2020, Board of Veterans’
Appeals (Board) decision denying (1) dependency and indemnity compensation (DIC) under 38
U.S.C. § 1310, and (2) DIC benefits under 38 U.S.C. § 1151.1
Appellant argues that the Board failed to ensure that VA complied with its duty to assist.2
She asserts that VA did not make appropriate efforts to obtain identified private medical records.3
The Court cannot make this determination because the Board failed to address whether VA
fulfilled its duty to assist. Thus, judicial review is frustrated, and the Court will remand.4
Appellant also argues that the Board erred by relying on two inadequate VA compensation
and pension (C&P) opinions.5 Whether the opinions are adequate hinges on whether there are
1 Appella nt’s Brief (Br.) a t 1; Record (R.) a t 5-19. The Boa rd’s decision a lso denied restoration of DIC
benefits under 38 U.S.C. § 1318. R. at 5-6. Because appellant does not challenge this part of the Board decision, the
Court dismisses the appeal on that matter. See Pederson v. McDonald, 27 Vet.App. 276, 281–85 (2015) (en banc)
(finding that the Court may decline to review an issue that appellant has abandoned on appeal).
2 Appellant’s Br. a t 10-13.
3 Id.
4 See Tucker v. West, 11 Vet.App. 369, 374 (1998).
5 Appellant’s Br. a t 15-21.
2
private records relevant to the examiner’s determinations. So whether the exams are adequate is
intertwined with whether VA fulfilled its duty to obtain private records. Thus, the Board’s failure
to address VA’s duty to assist in obtaining records also frustrates the Court’s review of the C&P
exams. The Court will remand for the Board to address the adequacy of the C&P exams after
addressing VA’s duty to assist in obtaining records.
I. ANALYSIS
To receive DIC benefits, a claimant must show that his or her veteran spouse , child, or
parent died from a service-connected disability.6 This means that a service-connected disability or
illness must have either directly caused the veteran’s death or contributed to it in a significant way.7

For VA to grant service connection for a disability or illness, the condition must result from an
injury or occurrence that happened during the veteran’s service.8 For a service-connected disability
or illness to have directly caused (also called the “principal cause of”) the veteran’s death, it must
have been the immediate or underlying cause of death, either by itself or together with another
disorder. 9 A service-connected disability or illness contributed to the cause of death if it
substantially or materially contributed or combined with another disorder to cause death, or if it
aided or lent assistance to the production of death.10 Put simply, a DIC claimant must show that
the veteran’s death stemmed from a disability or illness that was, or could be, service connected
when the veteran passed.
A. Private Medical Records
In January 2020, VA obtained a C&P medical opinion on the cause of the veteran’s death.11
The examiner stated that he could not opine on the cause of the veteran’s death because of a lack
of evidence in the record.12 The examiner noted that the record lacked medical treatment records
for the final 8 months of the veteran’s life, records of emergency medical services, and an autopsy
6 38 U.S.C. § 1310; see Dyment v. West, 13 Vet.App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287
F.3d 1377 (Fed. Cir. 2002).
7 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (2021).
8 See 38 C.F.R. § 3.303(a) (2021); see also Hickson v. West, 12 Vet.App. 247, 253 (1999).
9 See 38 C.F.R. § 3.312(b).
10 See 38 C.F.R. § 3.312(c).
11 R. at 142-45.
12 R. at 142.
3
report.13 VA then undertook more development and contacted appellant, requesting that she submit
or authorize the release of private treatment records for the last 8 months of the veteran’s life,
emergency medical service records, and the veteran’s autopsy report. 14 Appellant timely
responded to VA’s request and provided a completed authorization for release of medical
records.15 This release authorized VA to obtain records from Providence Hospital for a period
ending in 2013.16
After obtaining records consistent with the authorization that appellant completed, VA
ordered a supplemental C&P medical opinion.17 The April 2020 C&P examiner again stated that
he could not opine on the veteran’s cause of death because the record lacked medical treatment
records for the final 6 months of the veteran’s life, records of emergency medical services, and an
autopsy report.18 VA then adjudicated appellant’s claim.
As part of its duty to assist, VA “shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate [his or her] claim.”19 That duty requires VA to “make
reasonable efforts to obtain relevant private records that the claimant adequately identifies.”20 If,
after making “reasonable efforts,” VA cannot obtain the relevant records sought, it must notify the
claimant and (1) identify the records VA cannot obtain, (2) explain the efforts that VA made to
obtain those records, and (3) explain that VA will decide the claim based on the record, but that
appellant is free to submit evidence if that submission is otherwise allowed. 21 The Board’s
determination on whether VA fulfilled its duty to assist is a factual finding that the Court reviews
13 R. at 142-43.
14 R. at 126-40.
15 R. at 122-25.
16 R. at 124.
17 R. at 46-49.
18 R. at 46-47.
19 38 U.S.C. § 5103A(a)(1).
20 38 U.S.C. § 5103A(b)(1).
21 38 U.S.C. § 5103A(b)(2).
4
for clear error.22 But the Court cannot review a factual finding that the Board does not make. 23
And the Board must weigh the evidence in the first instance.24
Here, the Board briefly explained how it identified outstanding, relevant private records
following the January 2020 C&P opinion and the steps it took to seek those records, seeking
authorization from appellant to obtain those records. 25 The Board then noted the April 2020
examiner’s finding that the record still lacked almost all the same relevant records.26 But the Board
did not discuss whether VA satisfied its duty to assist. The Board did not explain which records it
obtained with appellant’s authorization or which records it could not obtain. The Board also did
not explain why it could not obtain some records. It is unclear if Providence Hospital failed to
return some records, whether appellant’s authorization was too narrow in scope to cover all
relevant records, or whether the hospital did not possess the emergency services records or autopsy
report. What’s more, if appellant’s authorization was too limited, the Board did not make a finding
on whether VA’s March 2020 notice to appellant constituted a “reasonable” effort to obtain the
relevant private records, or whether VA should have followed up with appellant when it learned
that the release appellant returned did not cover all the relevant records. Similarly, the Board never
addressed whether VA adequately notified appellant, as required, about which records it could not
obtain, what steps it took to obtain them, and that VA would adjudicate appellant’s claim without
those records.27
The Secretary offers several arguments on how VA satisfied its duty to assist, but it is the
Board that must make factual findings and support them with a statement of reasons or bases; the
Secretary may not do so with a post hoc rationalization.28 The Board’s failure to discuss whether
22 Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009). Under the “clearly erroneous” standard, the
Court may not reverse a Board finding unless, on review of the entire record, the Court is left with the definite and
firm conviction that the Board committed a mistake. See Deloach v. Shinseki, 704 F.3d 1370, 1378-79 (Fed. Cir.
2013).
23 Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for
initial fact finding.”).
24 Deloach, 704 F.3d at 1380.
25 R. at 13-15.
26 R. at 15.
27 38 U.S.C. § 5103A(b)(2).
28 In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (declining to consider alternative grounds in support
of the Board’s decision because “‘courts may not accept appellate counsel’s post hoc rationalization for agency action’”
(emphasis omitted) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); Martin v.
Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to
5
VA satisfied its duty to assist appellant in obtaining private records frustrates judicial review, and
the Court will remand for the Board to address whether VA complied with its duty to assist.29
B. January 2020 and April 2020 C&P Opinions
When VA obtains a medical opinion, the Secretary must ensure that it is adequate. 30 A
medical exam or opinion is adequate where it considers “the veteran’s prior medical history and
examinations,”31 “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of
the claimed disability will be a fully informed one,’”32 and “sufficiently inform[s] the Board of a
medical expert’s judgment on a medical question and the essential rationale for that opinion.”33 If
a medical examiner opines that he or she cannot give an opinion without resorting to mere
speculation, that opinion will only be adequate when the inability to give an opinion is due to a
lack of knowledge among the medical community and not a lack of procurable information or lack
of skill by a particular examiner.34 As with other findings of fact, the Court reviews the Board’s
determination on the adequacy of an opinion for clear error.35
The VA examiner who completed the January and April 2020 C&P opinions declined to
opine on the veteran’s cause of death because he found that there was insufficient evidence to
make such an opinion, as private medical documents were missing from the record.36 Thus,
whether the opinions are adequate hinges on whether the outstanding records were “procurable.”37
That question in turn hinges on whether VA satisfied its duty to assist appellant in obtaining
outstanding private medical records. As detailed above, the Board failed to address that question,
deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action advanced for the first
time in the reviewing court.”).
29 See Hensley, 212 F.3d at 1263 (finding that when a court of appeals reviews a lower court’s decision, it
may remand the case if the previous adjudicator failed to make findings of fact essential to the decision).
30 Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (2021).
31 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
32 Id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
33 Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam); see also Acevedo v. Shinseki, 25 Vet.App.
286, 293 (2012).
34 See Sharp v. Shulkin, 29 Vet.App. 26, 36 (2017); Jones v. Shinseki, 23 Vet.App. 382, 390 (2010).
35 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
36 R. at 46-47, 142-43.
37 See Sharp, 29 Vet.App. at 33.
6
frustrating the Court’s ability to review whether the C&P opinions are adequate.38 The Court will
remand for the Board to discuss the adequacy of the January and April 2020 C&P opinions and
whether VA complied with its duty to assist.39
C. Other Arguments
While appellant asked the Court to find that VA did not comply with the duty to assist, the
Court cannot reach that question because of the Board’s inadequate statement of reasons or bases
and will remand for the Board to provide the necessary discussion. Given this disposition, the
Court need not address appellant’s remaining arguments that could not create any remedy broader
than this remand.40 On remand, appellant may submit additional evidence and argument; she has
90 days to do so from the date of VA’s postremand notice.41
II. CONCLUSION
For these reasons, the Court SETS ASIDE those parts of the Board’s July 24, 2020,
decision that denied (1) DIC under 38 U.S.C. § 1310, and (2) DIC benefits under 38 U.S.C. § 1151,
and the Court REMANDS the matters for readjudication and further development. The Court
DISMISSES the appeal of that part of the Board’s decision denying restoration of DIC benefits
under 38 U.S.C. § 1318.
DATED: November 22, 2021
Copies to:
Janet E. Totter, Esq.
VA General Counsel (027)
38 See Tucker, 11 Vet.App. at 374 (“[W]here the Board has incorrectly applied the law, failed to provide an
adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand
is the appropriate remedy.”)
39 See Hensley, 212 F.3d at 1263.
40 See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (“[I]f the proper remedy is a remand, there is no need to
analyze and discuss all other claimed errors that would result in a remedy no broader than a remand.”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order).
41 See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).

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