Citation Nr: 1103610 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 09-11 256A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from February 1946 to December 1948. The Veteran died in July 2007. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the St. Louis, Missouri Regional Office (RO) that denied the appellant's claim for service connection for the cause of the Veteran's death. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA must make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 C.F.R. § 3.159 (2009). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The appellant asserts that service connection is warranted for the cause of the Veteran's death. The Veteran's July 2007 death certificate shows that the immediate cause of his death was sepsis and that aspiration pneumonitis was a condition that led to the immediate cause of death or was an underlying cause of death. A brain tumor and cerebral edema were conditions that were listed as significant conditions that contributed to his death but did not result in the underlying cause of death. The appellant specifically contends that the underlying cause of the Veteran's death, i.e. -- aspiration pneumonitis, was due to the extreme cold that the Veteran was exposed to while stationed in the Arctic Circle. Although the Veteran's service treatment records do not show that the Veteran ever complained of, or was treated for pnuemonitis or any other pulmonary disability while in service, the record shows that the Veteran was stationed in the Arctic Circle during his military service. Indeed, a May 31, 1948 Letter of Commendation from Major General, USAF, B. E. N., addressed to the Veteran commended the Veteran for the part he played in the successful completion of the Big Beetle Project during the period from January 1, 1948 to May 30, 1948. According to such letter, the Veteran served under conditions comparable to combat operations to construct long-range electronic beacons on the North American rim of the Arctic Ocean-located respectively at Kittigazuit in northwest Canada, Sawmill Bay on the Mckenzie River, and Cambridge Bay on Victoria Island off the northern coast of Canada. Post-service treatment records also show that at least since 2001, the Veteran has been diagnosed with, and treated for various pulmonary disabilities, to include bronchitis, chronic obstructive pulmonary disease, pneumonia, and recurrent pneumonitis. With respect to whether the Veteran's death was related to his exposure to extreme cold in the Arctic Ocean, the appellant, in April 2009, submitted a letter from R. R. S., M.D., one of the Veteran's treating physicians's who stated that the Veteran's exposure to extreme temperatures (between 10 to 60 degrees below zero) could have had a long term effect on the Veteran's lungs. However, despite the appellant's contentions, the documented evidence of the Veteran's exposure to extremely cold temperatures in service, and the April 2009 statement from the Veteran's physician regarding the possibility that the Veteran's exposure to extremely cold temperatures could have had a long-term effect on his lungs, the record does not show that a VA opinion has been obtained to determine whether there existed an etiological relationship between the Veteran's exposure to extreme cold in the Arctic Circle and his underlying death from aspiration pneumonitis. Therefore, the Board finds that a VA opinion is necessary in this regard. In addition, the Board observes that in Hupp v. Nicholson, 21 Vet App 342 (2007) the United States Court of Appeals for Veterans Claims (Court) expanded the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements for a DIC claim. In Hupp, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a Veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the Court held in Hupp that the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. A review of the claims file reveals that, in light of the Hupp decision, the June 2008 VCAA notification letter sent to the appellant is insufficient. Thus, the Board finds that remand is required so that the appellant can be provided with a new VCAA notice letter that more fully complies with the Court's holding in Hupp. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Issue a corrective VCAA notice under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information and evidence needed to substantiate the claim for entitlement to service connection for the cause of the Veteran's death as outlined by the Court in Hupp v. Nicholson, 21 Vet App 342 (2007). Specifically, the appellant should be informed of the conditions for which the Veteran was service-connected at the time of his death, an explanation of the evidence and information required to substantiate a DIC claim based on each previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Such notice must be tailored to the specific information provided in the appellant's February 2008 claim for benefits. 2. Contact the appellant and request that she furnish the names, addresses, and dates of treatment, as well as authorization for release of such records, for all medical providers from whom the Veteran received treatment for his aspiration pnuemonitis. After securing the necessary authorizations for release of this information, obtain copies of all treatment records referred to by the appellant, not already of record. 3. After completion of the above, the claims folder should be forwarded to an appropriate VA clinician for an opinion as to whether it is at least as likely as not that Veteran's exposure to cold temperatures while serving in the Arctic Circle in 1948 either caused or contributed substantially or materially to the cause of the Veteran's death from aspiration pneumonitis. A rationale should be provided for the opinion proffered. The examiner should also reconcile his/her opinion with the April 2009 statement from Dr. R.R.S., the Veteran's treating physician. 4. After completion of the above, the issue on appeal should be readjudicated. If the benefit sought is not granted, the appellant and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, as necessary. (CONTINUED ON NEXT PAGE) The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2010).