A surviving spouse’s benefits appeal can turn on whether VA has adequately addressed the veteran’s medical history and the theories supported by the record. In this case, I challenged a cause-of-death denial that relied on medical opinions containing unresolved factual concerns and left a treatment-related theory unanswered.
Listening to the client and reviewing the medical record
I listened to my client and examined the Board decision alongside the medical opinions and treatment records. One opinion relied on factors including weight and unspecified congenital illnesses. The records raised questions about those premises, including whether the veteran had been classified as obese and which congenital factors the examiner meant.
Another opinion described prostate-specific antigen levels as remaining within normal limits after treatment. Other records documented elevated levels. I compared those entries with the Board’s reasons for treating the opinions as the most persuasive evidence.
The review also identified a separate theory: whether radiation treatment for prostate cancer and chemotherapy for bladder cancer substantially contributed to the veteran’s death. The Board had not adequately addressed that question.
Building the legal memo around the unanswered questions
I prepared a legal memo identifying the medical-opinion concerns and the omitted theory of entitlement. The argument did not require me to determine the medical cause of death. It required the Board to address whether the opinions were adequate in light of the inconsistencies and to consider the theory reasonably raised by the treatment evidence.
The joint motion drew on the Board’s reasons-or-bases obligations and the requirement to address theories reasonably raised by the claimant or record. It also specified that, if the record lacked medical evidence addressing the treatment-related question, a medical opinion should be obtained on that point.
The appellate result
I won a CAVC remand of the cause-of-death service-connection matter. That result required further adjudication addressing the identified medical-opinion problems and the unresolved treatment theory.
The remand was not a medical finding that cancer treatment caused or contributed to death, and it did not itself award survivor benefits. It required a more complete and legally adequate consideration of the claim.
Respecting both the client and the evidence
In a survivor’s appeal, listening carefully is essential, and so is avoiding assumptions about what the medical evidence establishes. My role was to identify the gaps, explain why they mattered, and develop written arguments that required VA to confront the questions the denial had left open.
Discuss your Board appeal
I represent veterans and their families at the CAVC. Learn about my appellate representation or request a free Board decision review.
For more about this issue, read our related appeal guide. The ordinary Court filing deadline is 120 days after notice of the Board decision is issued. Contacting a law firm does not extend that deadline.
Past results do not guarantee a similar outcome. A remand requires further proceedings and does not itself award benefits.
