Citation Nr: 0528911 Decision Date: 10/27/05 Archive Date: 11/09/05 DOCKET NO. 94-41 527A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney at Law WITNESSES AT HEARINGS ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946 and from January 1948 to June 1966. He died in April 1993. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In a July 2000 decision, the Board denied the claim. In October 2000, the Board vacated its July 2000 decision. In a May 2001 decision, the Board again denied the claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2001, the Court vacated the Board's May 2001 decision and remanded the case to the Board. A June 2002 Board decision again denied the claim. The appellant again appealed to the Court. A February 2003 Court order granted a joint motion requesting that the June 2002 Board decision be vacated and once again remanded the case to the Board. In October 2003, the Board remanded the case for further evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND While the appeal was in remand status, VA received for the first time medical opinion evidence to the effect that an inservice weight gain caused or contributed substantially or materially to cause his death. See February 2004 letter from Irfan-UI Huq, M.D.. Similarly, VA received for the first time medical opinion evidence to the effect that the veteran showed the early signs and symptoms of diabetes mellitus while in military service, that service connection for diabetes mellitus should have been granted during his life time, and that diabetes mellitus caused or contributed substantially or materially to cause his death. See March 2004 letter from Craig N. Bash, M.D.. In light of this new evidence and the fact that it has yet to be considered by a VA examiner, another remand to obtain a VA medical opinion based on the consideration of these opinions is required. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.326, 19.9 (2004). Secondly, on remand the claimant should be notified that the current record is devoid of any medical evidence showing complaints, diagnoses, or treatment for obesity for the first 14 years following the veteran's June 1966 separation from military service (see January 1980 treatment records from Hampton Hospital), or a diagnosis of diabetes mellitus until diagnosed after his death by Dr. Bash in March 2004. Therefore, since such evidence is critical to establishing her claim, she is invited to obtain and associate with the record any pertinent evidence. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.303 (2004). Therefore, the appeal is REMANDED for the following: 1. The RO should contact the appellant and notify her that the current record is devoid of any medical evidence showing complaints, diagnoses, or treatment for obesity for the first 14 years following the veteran's June 1966 separation from military service. The record is also devoid of any evidence suggesting a diagnosis of diabetes mellitus was until that disorder was diagnosed in March 2004. She is invited to identify the location of any relevant medical records during this time period so that VA may obtain them on her behalf. 2. The RO should make arrangements with an appropriate VA facility for the appellant's claims file to be reviewed by a panel of three physicians. Based on a review of the claims folder, the panel must provide a consensus opinion address the following: As to any inservice weight gain, is it at least as likely as not (i.e., is there a 50/50 chance) that this weight gain caused or contributed substantially or materially to cause his death? Is it at least as likely as not that diabetes mellitus was incurred during military service, to include due to any in-service weight gain? Is it at least as likely as not that diabetes mellitus was compensably disabling within the first year following the veteran's June 1966 separation from active duty? If diabetes was incurred military service or if diabetes was compensably disabling within a year of separation from active duty, address whether it is at least as likely as not that diabetes caused or contributed substantially or materially to cause the veteran's death. In providing answers to the above questions, the physicians must comment on the February 2004 opinion provided by Dr. Ul-Huq and the March 2004 opinion provided by Dr. Bash. 2. After the development requested has been completed, the RO should review the panel report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. If additional evidence or information received or not received triggers a need for further development, assistance or notice under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), such as providing the appellant with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development should be undertaken by the RO. 38 U.S.C.A. §§ 5100, 5103 (West 2002); 38 C.F.R. § 3.159 (2004). 4. Thereafter, the RO should prepare a new rating decision and readjudicate the issue on appeal. The RO is advised that they are to make a determination based on any further changes in the VCAA and any other applicable legal precedent. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2004).