Citation Nr: 0209214 Decision Date: 08/06/02 Archive Date: 08/12/02 DOCKET NO. 98-07 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependents' educational assistance under Title 38, Chapter 35 of the United States Code. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from March 1953 to March 1957, and from May 1957 to May 1979. He died in June 1997, and the appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. REMAND Preliminary review of the claims file reflects that three pertinent pieces of correspondence mailed to the appellant have been returned as undeliverable. Those pieces of correspondence consist of a Board remand issued in June 2001, a VA development request letter dated in December 2001 and, most recently, a supplemental statement of the case (SSOC) issued in April 2002. All documents were mailed to an address in Chandler, Arizona. A Report of Contact, VA Form 119, dated in January 2001, however, reflects that an employee of the RO contacted the appellant and was informed that her new address was in Gilbert, Arizona. It does not appear that the Gilbert, Arizona address was used in mailing any correspondence to the appellant. This contact occurred while the claims folder was at the Board and the Board was not aware of this address change at the time it issued the June 2001 remand. In light of the above, the claimant is entitled to full notice with regard to all three items of correspondence noted above. Further, because the Board's remand dictated certain RO actions and directed that the claimant have the opportunity to submit additional argument or evidence to the RO, the case must be returned to the RO. Stegall v. West, 11 Vet. App. 268 (1998). This will also provide the RO an opportunity to resend December 2001 development letter and the April 2002 SSOC to the appellant at her current address in Gilbert, Arizona. In order to provide the appellant proper notice and due process of law in regard to the June 2001 Board remand, the key text is reprinted below. On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependents' educational assistance under Title 38, Chapter 35 of the United States Code. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from March 1953 to March 1957, and from May 1957 to May 1979. He died in June 1997, and the appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Upon reviewing the record, the Board is of the opinion that further development is warranted. Therefore, the disposition of the issues of entitlement to service connection for the cause of the veteran's death, and dependents' educational assistance under Title 38, Chapter 35 of the United States Code will be held in abeyance pending further development by the RO, as requested below. REMAND 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 (Court) 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). The other salient features of the new statutory provisions impose the following obligations on the Secretary (where they will be codified in title 38 United States Code is noted in parentheses): (1) The Secretary must provide application forms and notify the claimant and the representative, if any, if his application is incomplete, of the information necessary to complete the application (38 U.S.C.A. § 5102); (2) The Secretary must provide the claimant and the claimant's representative, if any, with notice of required information and evidence not previously provided that is necessary to substantiate the claim (38 U.S.C.A. § 5103(a)); (3) The Secretary must indicate which part of the information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant (38 U.S.C.A. § 5103(a)); (4) The Secretary must make reasonable efforts to assist the claimant 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 U.S.C.A. § 5103A(a)); (5) The Secretary must make every reasonable effort to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(b)(1)); (6) If, after making reasonable efforts to obtain relevant records, the Secretary is unable to obtain the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records, and such notification shall: (a) identify the records the VA is unable to obtain; (b) briefly explain the efforts that the VA made to obtain those records; and (c) describe any further action to be taken by the Secretary with respect to the claim (38 U.S.C.A. § 5103A(b)(2)). (7) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)); (8) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) [38 U.S.C.A. § 5103A(b)] shall include obtaining the following records if relevant to the claim: (a) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity (38 U.S.C.A. § 5103A(c)(1)); (b) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)); (c) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)). (9) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) [38 U.S.C.A. § 5103A(a)] shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim (38 U.S.C.A. § 5103A(d)(1)): (a) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant): (i) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (ii) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (iii) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. (10) Nothing in this section [38 U.S.C.A. § 5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) [38 U.S.C.A. § 5103A(a)] to a claimant in substantiating a claim as the Secretary considers appropriate (38 U.S.C.A. § 5103A(g)); (11) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary (38 U.S.C.A. § 5107). The appellant maintains that the veteran's exposure to Agent Orange and/or his use of nicotine products during service caused or contributed substantially to cause his death. Because of the specific nature of the claims at hand, the Board finds that it would be productive to cite certain pertinent guidelines. The Board is bound in its decisions by the precedent opinions of VA General Counsel. See 38 U.S.C.A. § 7104(c). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly, or with some other condition be the immediate or underlying cause, or be etiologically related. For a service- connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death; rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991 & Supp. 2000); 38 C.F.R. § 3.312 (2000). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). In order to show that a disability is proximately due to or the result of a service-connected disease or injury, the appellant must submit competent medical evidence showing that the disabilities are causally-related. Jones v. Brown, 7 Vet. App. 134, 137 (1994). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (West 1991 & Supp. 2000); 38 C.F.R. § 3.307(a)(6)(iii) (2000). Where a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne or other acneiform disease consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, prostate cancer, acute and subacute peripheral neuropathy, respiratory cancers (that is, cancers of the lung, bronchus, larynx, or trachea) or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2000). These diseases shall be come manifest to a degree of 10 percent or more at any time after service, except that chloracne, other acne disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall be come manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2000). Apart from the question of whether the veteran served in Vietnam, discussed further below, the record in this matter contains no demonstration of a disability listed within 38 C.F.R. § 3.309(e). The United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a claimant from establishing service connection with proof of actual direct causation under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Although this holding pertained to compensation due to exposure to ionizing radiation, the Board finds that this judicial construction is equally applicable when the issue involves compensation due to exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155, 160 (1997) [citing Combee, supra; Cosman v. Principi, 3 Vet. App. 503, 505 (1992)]. Applicable law generally recognizes two means by which service connection may be established for claimed nicotine- related diseases and disorders. First, if a claimant can establish that a disease or injury resulting in disability or death was a direct result of tobacco use during service, e.g., damage done to a veteran's lungs by in- service smoking gave rise to lung cancer, service connection may be established without reference to section 38 C.F.R. § 3.310(a) which provides for "secondary service connection." However, where the evidence indicates a likelihood that a veteran's disabling illness had its origin in tobacco use subsequent to service, and the veteran developed a nicotine dependence during service which led to continued tobacco use after service, the issue then became whether the illness may be considered secondary to the service-incurred nicotine dependence pursuant to 38 C.F.R. § 3.310. See VA General Counsel Precedential Opinion, (VAOPGCPREC) 19-97; see also 38 U.S.C.A. § 7104(c) (VA is statutorily bound to follow the precedential opinions of the VA Office of General Counsel); Davis v. West, 13 Vet. App. 178, 183 (1999). VAOPGCPREC 19-97 was prepared in response to an inquiry regarding under what circumstances service connection may be established for tobacco-related disability or death on the basis that such disability or death is secondary to nicotine dependence which arose from a veteran's tobacco use during service. The 1997 Opinion cited VAOPGCPREC 2-93, which held that whether nicotine dependence was a disease for compensation purposes was an adjudicative matter to be resolved by adjudicative personnel based on accepted medical principles. The threshold question was whether nicotine dependence could be considered a disease within the meaning of the veterans' benefit laws, and, in that regard, further VA guidelines, which held in the affirmative, were referenced. The 1997 Opinion further noted that secondary service connection could occur only if a veteran's nicotine dependence which arose in service and resulting tobacco use were the proximate cause of the disability or death which is the basis of the claim, and that proximate cause is adjudicatively one of fact. The 1997 Opinion also noted the potential for an intervening or a supervening cause of injury that might act to sever the proximate and causal connection between the original act and the injury. The VA's Under Secretary for Health has concluded that nicotine dependence may be considered a disease for VA compensation purposes. See USB Letter 20-97-14 (July 24, 1997). Therefore, the two principal questions which must be answered by adjudicators in resolving a claim for benefits for tobacco-related disability or death secondary to nicotine dependence are: (1) whether the veteran acquired a dependence on nicotine during service; and (2) whether nicotine dependence which arose during service may be considered the proximate cause of disability or death occurring after service. With regard to the first question, the Opinion held that the determination of whether a veteran is dependent on nicotine is a medical issue. It noted that the Diagnostic and Statistical Manual, 4th Edition, (DSM-IV), 243, provided that the criteria for diagnosing substance dependence are generally to be applied in diagnosing nicotine dependence. Under those criteria, nicotine dependence may be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of the following criteria occurring at any time in the same 12-month period: (1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine-containing products; (2) withdrawal, marked by appearance of four or more of the following signs within twenty- four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely related substance to relieve or avoid withdrawal symptoms; (3) use of tobacco in larger amounts or over a longer period than was intended; (4) persistent desire or unsuccessful efforts to cut down or control nicotine use; (5) devotion of a great deal of time in activities necessary to obtain nicotine (e.g., driving long distances) or use nicotine (e.g., chain-smoking); (6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking-restricted areas); and (7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine. Id. at 181, 243-45. VAOPGCPREC 19-97 further provided that in a case where, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, the decision would have to be made whether the post-service usage of tobacco products was the proximate cause of the disability or death upon which the claim is predicated. As discussed above, a supervening cause of the disability or death, such as exposure to environmental toxins, etc., might constitute a supervening cause of the disability or death so as to preclude service connection. It also addressed the situation when a nicotine-dependent individual might have full remission and then resume use of tobacco products. In summary, the precedential opinions of the VA General Counsel provide that in the determination of whether secondary service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, inquiry must be had upon whether nicotine dependence may be considered a disease for purposes of VA benefits; whether the veteran acquired nicotine dependence in service; and whether that nicotine dependence may be considered the proximate cause of disability or death resulting from the veteran's use of tobacco products. These questions must be answered by adjudication personnel applying established medical principles to the facts of particular claims. See Davis, 13 Vet. App. at 183-184. The veteran's service medical records are negative for findings of nicotine dependence, cardiovascular disease, or pulmonary disease. A February 1965 treatment record contains an impression of acute bronchitis and indicates the provider recommended that the veteran stop smoking. A January 1979 separation examination report notes a normal psychiatric evaluation, and normal clinical evaluations of the vascular system, heart, lungs and chest. A July 1979 VA examination revealed normal psychiatric, cardiovascular and respiratory systems. A death certificate discloses that the veteran died at age 62 in June 1997, with the immediate cause listed as a myocardial infarction due to coronary artery disease. Other significant conditions included chronic obstructive pulmonary disease (COPD). An autopsy was not performed. At the time of the veteran's death, service connection was in effect for bilateral otitis media, bilateral hearing loss, and residuals of nephrolithiasis, each evaluated as noncompensably disabling. In July 1997, the appellant filed a claim for service connection for the cause of the veteran's death, and entitlement to dependents' educational assistance under Title 38, Chapter 35 of the United States Code. This claim was denied by the RO the following month. The appellant filed a notice of disagreement (NOD) with this decision in March 1998, and submitted a substantive appeal (VA Form 9) in May 1998, perfecting her appeal. During an August 1998 personal hearing, the appellant testified that she first met the veteran in 1989. Transcript (T.) at 4-6. She explained that the veteran began smoking cigarettes during service, and indicated that he received private medical treatment for pulmonary disease following his discharge. T. at 4-6 and 8-10. She reported that the veteran died suddenly from a heart attack in June 1997. T. at 6-7. The appellant opined that because her husband died at an early age, his death may have been related to exposure to Agent Orange during service. T. at 7-8. In support of her claim, the appellant submitted a May 1989 statement from Dr. R.G. Therein, the physician reported treating the veteran for COPD with pulmonary fibrosis from September 1996 until his death in June 1997. He explained that the veteran was a heavy smoker (two to three packs of cigarettes per day), and indicated that he was nicotine dependent. The physician noted that the veteran served in the Republic of Vietnam, and opined that "any possible exposure to Agent Orange could have aggravated his lung condition." A December 1998 hearing officer's decision continued the denial of service connection for the cause of the veteran's death, and entitlement to dependents' educational assistance under Title 38, Chapter 35 of the United States Code. In February 1999, the appellant submitted statements from the veteran's step brother, and his private physician. A November 1998 statement from the veteran's step brother indicates that the veteran began smoking cigarettes in service. In a statement dated later that month, Dr. W.D. reported treating the veteran for a right lung pneumocele in November 1996. He explained that the veteran had COPD at that time, but was unable to quit smoking despite multiple prescriptions for patches and gum. The physician related that a cardiac work-up in 1996 failed to show any problems with circulation to the veteran's heart, but noted that he died from an acute myocardial infarction the following year. Based on the assumption that the veteran began smoking cigarettes during service, the physician opined that it was "certainly likely that his combination of cigarette smoking and exposures contributed to his chronic obstructive pulmonary disease and there is little doubt that his heart disease was extremely more likely in this smoking environment." In January 2001, the RO continued the denial of service connection for the cause of the veteran's death, and entitlement to dependents' educational assistance under Title 38, Chapter 35 of the United States Code. A review of the claims folder reveals that relevant evidence in support of the appellant's claim may exist or could be obtained. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to her claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 2000); 38 C.F.R. § 3.103(a) (2000), the Board is deferring adjudication of the issues on appeal pending a remand of he case to the RO for further development. As the VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)), in addition to records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)), the Board finds that it has no alternative under the new legislation but to remand this matter so that the RO can take the necessary steps to obtain all outstanding medical records. It should be further noted that whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). The Board first notes that it can not identify in the current records any clear indication that the veteran actually served in the Republic of Vietnam. His DD Form 214 notes a Republic of Vietnam Campaign Medal during his period of active duty from May 1963 to May 1967; however, this award does not establish service in the Republic of Vietnam as opposed to participation in activities supporting operations in Vietnam. The is no award of a Vietnam Service Medal, and the Board finds nothing in his service medical records incidentally reflecting service in Vietnam. The Board recognizes the medical statements from Dr. R.G. and Dr. W.D. suggesting a link between the cause of the veteran's death and service. In a May 1998 report, Dr. R.G. noted that "[t]he time [the veteran] spent in the military, in Vietnam and any possible exposure to Agent Orange could have aggravated his lung condition." The Board notes this report, at best, contains an assumption about the veteran's service in Vietnam not now supported by the record. To the extent the statement can be read for the proposition that the physician was offering an opinion that service in the military in general "aggravated" a lung condition, the Board finds such an opinion is no more than an assertion lacking any articulated rational. In other words, the opinion contains no indication of what disease or injury of service origins "aggravated" a lung condition. If Dr. R.G. is aware of any medical texts that indicate that service in the armed forces in general, or the Air Force in particular are shown to be causally related to respiratory disabilities, he should provide citation to such texts. Dr. W.D. subsequently stated that he was informed that the veteran has begun smoking in service and the provider opined that it was "certainly likely that [the veteran's] combination of cigarette smoking and exposures contributed to his chronic obstructive pulmonary disease and there is little doubt that his heart disease was extremely more likely in this smoking environment." The Board finds this opinion likewise lacks an articulated basis for its reference to "exposures," apparently in service, contributing to the development of a respiratory disability. To the extent the opinion links a respiratory disability to tobacco use, the opinion does not indicate to what degree, if any, cigarette smoking in service as opposed to post service contributed to his pulmonary disability. Service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (1999); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain, 11 Vet. App. at 127. The Court has further held that statements from doctors which are inconclusive as to the origin of a disease can not fulfill the nexus requirement to well ground a claim. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993) (where a physician is unable to offer a definite causal relationship that opinion may not be utilized in establishing service connection as such an opinion is non-evidence). Consequently, the Board concludes that these medical opinions are simply too speculative to constitute competent evidence establishing that any disability related to service caused or contributed substantially or materially to the veteran's death. Under the provisions of the Veterans Claims Assistant Act of 2000 (hereafter VCAA), there is a duty to determine whether or not the veteran served in Vietnam, and to determine whether his smoking in service, noted in the service medical record in February 1965, caused or contributed to cause death. Whether the VCAA further mandates that VA advise the claimant of the deficiencies in the evidence she has offered to date to substantiate the claim is not clear, but inasmuch as the case must be remanded in any event, this opportunity may be used to provide such advice. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to her claim, and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The appellant may submit additional evidence and argument in support of her claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). Her attention is respectfully invited to the discussion above on page 15 concerning the medical opinions she has submitted in support of her claim. 2. In order to ensure that all relevant treatment records have been secured, the appellant should be requested to identify all sources of treatment for the veteran that are not currently a part of the record. After any necessary information and authorization are obtained from the appellant, outstanding records, VA or private, inpatient or outpatient, should be obtained by the RO and incorporated into the claims folder. The RO is again advised that efforts to obtain VA records should continue until they are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). 3. The RO should request the service department to verify whether or not the veteran served in the Republic of Vietnam. The claimant is advised that if she possesses any evidence that would shed light on this question, she should submit it to the RO. 4. Following the above development, the RO should arrange for a appropriate VA physician to review the claims folder or the pertinent records contained therein, including the June 1997 death certificate, the May 1998 report from Dr. R.G., the November 1998 report from Dr. W.D., a copy of this remand, and any records or statements that have been recently received from the appellant or otherwise added to the record. The physician is requested to render an opinion regarding the degree of medical probability that any disability incurred in or aggravated by service caused or contributed to death. The report should reflect a review of the claims file and include a complete rationale for all opinions expressed. With respect to the role of tobacco use in service, the provider should indicate whether the veteran had nicotine dependence during his lifetime and, if so, whether such dependence was incurred or aggravated inservice. The physician should also address the degree of medical probability that tobacco consumption inservice, as opposed to any tobacco consumption post service, caused or contributed to cause death. If it is not feasible to answer any of these questions without resort to speculation, the physician should so indicate. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should ensure that all reasonable steps have been taken to secure any outstanding medical records identified by the appellant. In addition, the RO should review the requested examination report and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand. If any development requested above has not been furnished, including any requested findings and/or opinions, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should re-adjudicate the issues of entitlement to service connection for the cause of the veteran's death, and dependents' educational assistance under Title 38, Chapter 35 of the United States Code. If the appellant's claim remains denied, she should be provided with a Supplemental Statement of the Case. The applicable response time should be allowed. The case should then be returned to the Board for further review. No action is required of the appellant until she is notified. The purpose of this REMAND is to accomplish additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103- 446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Upon review of the claims file, the Board notes that a VA medical opinion was submitted in March 2002 pursuant to the June 2001 Board remand. This opinion was based on the evidence of record at that time. The claimant has not bee advised of this opinion, nor has she had the opportunity, in light of the information in the Board's remand, to submit additional evidence or argument. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO should provide the appellant with copies of the December 2001 development letter and the April 2002 SSOC. Enclosures accompanying these documents should also be sent. The documents should be sent to the appellant at the Gilbert, Arizona address. The applicable response time (i.e., 60 days) should be allowed. 2. If, and only if, the appellant submits any additional evidence, the RO should refer the claims folder to the March 2002 VA examiner for an addendum to the medical opinion provided. If the March 2002 VA examiner is unavailable, the RO should arrange for an appropriate VA physician to review the claims folder and provide the medical opinions requested in action paragraph 4 of the June 2001 Board remand. 3. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for the cause of the veteran's death, and dependents' educational assistance under Title 38, Chapter 35 of the United States Code. If the appellant's claims remains denied, she should be provided with a SSOC. The applicable response time should be allowed. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the appellant is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the appellant until contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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) (2001).