Citation Nr: 0110851 Decision Date: 04/13/01 Archive Date: 04/23/01 DOCKET NO. 00-01 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under section 1151, Title 38, United States Code, for the cause of the veteran's death, as a result of VA hospitalization and treatment. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from September 1952 to June 1954; he died in August 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. The appellant is the veteran's widow. REMAND This appeal arises out of the appellant's claim that the veteran died as a result of VA medical treatment. Thus, she is essentially claiming entitlement to DIC, pursuant to the provisions of 38 U.S.C.A. § 1151, based on the theory that the veteran's death was due to VA medical treatment. The Board notes that the issue of direct service connection for the cause of the veteran's death was previously denied in a February 1999 BVA decision, and is not currently on appeal. The sole issue is whether VA medical care or treatment led to the veteran's death in August 1985. According to the law, compensation and dependency and indemnity compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death were service-connected. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (as in effect prior to October 1, 1997). The veteran in this case died in August 1985, while he was a patient at a VA medical center. Prior to his death, he had received VA treatment for nonservice-connected cancer. According to the veteran's death certificate, the immediate cause of death was carcinoma of the prostate with bony metastases. Another significant condition listed as contributing to death, but not related to the cause of death, was chronic renal failure. A review of the medical evidence of record reveals that during service, the veteran had an amputation of his right leg, secondary to a gunshot wound in Korea in 1953. Following service, in September 1980, the veteran was hospitalized at a VA hospital for a transurethral resection of the prostate. According to the hospitalization report, the veteran was seen because of urinary frequency and nocturia for the past 25 days. Upon examination, the veteran had a bone scan, which was noted to be consistent with metastatic disease, and a needle biopsy, which showed adenocarcinoma of the prostate. Consequently, he underwent the transurethral resection of the prostate. He was discharged in satisfactory condition. In October 1981, the veteran was again hospitalized at a VA hospital for re-evaluation of his kidney function and the metastases. It was noted that he had no symptoms at that time, and the bone scan showed essentially no change in comparison with the one in September 1990. An August 1982 VA bone scan revealed abnormal findings consistent with metastatic disease. A February 1984 VA hospitalization report indicates that the veteran was hospitalized for treatment of Stage D carcinoma of the prostate with bilaterally hydroureteronephrosis. As noted earlier, the veteran died in August 1985. The appellant specifically claims that the veteran's death resulted from the VA hospitalization, medical or surgical treatment. Recently, in April 2000, the appellant submitted a private medical statement from a Dr. Bash, who indicated that he had reviewed the veteran's entire claims file and medical history, as pertains to his fatal carcinoma. Dr. Bash found that there was "insufficient clinical evidence to support that [the veteran's] cancer had metastasized by the time of his diagnosis in September 1980." Dr. Bash indicated that such was due to the fact that the "VA staging decision was made based on inconsistent nuclear medicine/X- ray evaluations without lesion to lesion correlation." He indicated that without lesion to lesion correlation, it was "likely that the VA misstaged [the veteran's] degenerative arthritis as metastatic disease." He stated that if the veteran's prostate cancer had not yet metastasized, he would have been a candidate for more aggressive treatment, including a prostatectomy, and he may have been cured. Dr. Bash sets forth in detail reasons supporting his opinion. Included in those reasons is his opinion that the bone scan should have been followed up by spine X-rays, which were not done, and which may have shown that the veteran's metastasis was actually osteoarthritis. The Board has thoroughly reviewed the evidence of record, and finds that there may be additional pertinent VA treatment records, which have not yet been associated with the claims file. The record contains hospital summaries from the VA medical center in Dayton, Ohio, where the veteran was treated for his cancer. In July 1989, the appellant submitted a statement with attached medical records, many of which had not yet been associated with the veteran's claims file. The appellant indicated that she had gone to the hospital where the veteran had died, and was able to secure the additional medical records. She stated that the doctors told her that the only records which had been forwarded to the RO were the veteran's hospital discharge summaries. The appellant submitted additional medical records for the veteran on a few other occasions. However, it is unclear from the record whether all relevant medical records are in the veteran's claims file. Significantly, it does not appear that the RO ever made a request for a complete set of VA treatment records for the veteran. Furthermore, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In addition to ensuring compliance with the notice and duty to assist provisions contained in the VCAA, the Board finds that the following assistance must be rendered to comply with the new law. In light of the April 2000 private medical statement, which suggests that the VA may have "misstaged [the veteran's] degenerative arthritis as metastatic disease," the Board finds that it is essential that the entire record of treatment for the veteran at the VA medical center in Dayton, Ohio, particularly dated from January 1980 to August 1985, be associated with the veteran's claims file. Additionally, the Board finds that the RO should obtain an opinion from a Board of two physicians to examine the relevant treatment records, and offer an opinion as to whether the VA may have incorrectly diagnosed the veteran, and thus, improperly treated him. Therefore, this matter is REMANDED to the RO for the following: 1. The RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should contact the VA medical center in Dayton, Ohio, and request a complete set of any and all records pertaining to treatment of the veteran from January 1980, to the date of his death in August 1985. The request for such records must be clearly documented in the veteran's claims file. If such records are unavailable, the record should clearly reflect such, including a specific reason as to why they are not available. When the requested development has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).