Citation Nr: 0713174 Decision Date: 05/03/07 Archive Date: 05/15/07 DOCKET NO. 04-13 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to January 1966. The veteran died in December 1998. The appellant is the veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the appellant's claim for service connection for the cause of the veteran's death. The Board will first review the procedural history of this appeal. By rating action dated in August 2000, the RO denied service connection for the cause of the veteran's death. The appellant was notified of this decision in a letter dated the following month. The basis of the denial was that the claim was not well grounded. The standard for processing claims for Department of Veterans Affairs (VA) benefits was changed, effective November 9, 2000, with the signing into law of the Veterans Claims Assistance Act (VCAA) of 2000. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). The VCAA removed the requirement for a claimant to submit a well-grounded claim. Pursuant to Section 7(b) of the VCAA, a claim denied or dismissed as not well grounded shall, on the request of the claimant or on the Secretary's own motion, be readjudicated as if the denial or dismissal had not been made, provided that the denial was one that became final during the period beginning on July 14, 1999, and ending on November 9, 2000, the date of enactment of the VCAA. See also VAOPGCPREC 3- 2001. In November 2001, the appellant's representative requested reconsideration of the August 2000 rating decision. The June 2003 rating decision continued the denial of the claim for service connection for the cause of the veteran's death. In August 2005, the Board remanded the appeal for further development. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant asserts that the veteran's death was contributed to by diabetes mellitus, and that since the veteran served in Vietnam, service connection for the cause of the veteran's death is warranted. In this regard, she refers to an October 2003 statement from one of the veteran's physicians, L. Guerrero, M.D., who stated that it was as likely as not that the veteran's diabetic condition contributed to his death. In a rating decision dated in August 2000, the RO denied service connection for diabetes, as not well grounded, for purposes of accrued benefits, based on a pending claim filed by the veteran in 1996, during his lifetime. The appellant was notified of this determination by letter dated in September 2000. Effective May 8, 2001, the VA amended its regulation adding diabetes mellitus type II to the list of diseases in 38 C.F.R. § 3.309(e) that are presumed to be due to exposure to herbicides used in the Republic of Vietnam. The appellant's representative requested reconsideration of the August 2000 RO determination, in a November 2001 statement, based on the change in VA regulation, 38 C.F.R. § 3.309(e), effective May 8, 2001. Pursuant to Section 7(b) of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), a claim denied or dismissed as not well grounded shall, on the request of the claimant or on the Secretary's own motion, be readjudicated as if the denial or dismissal had not been made, provided that the denial was one that became final during the period beginning on July 14, 1999, and ending on November 9, 2000, the date of enactment of the VCAA. The Board noted in the August 2005 remand that the issue on appeal of whether service connection is warranted for the cause of the veteran's death is inextricably intertwined with the requested reconsideration of entitlement to service connection for diabetes mellitus for purposes of accrued benefits. The Court has held that a claim that is inextricably intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim. Harris v. Derwinski, 1 Vet. App. 180 (1990). Thus, the Board's adjudication of the claim for service connection for the cause of the veteran's death must be deferred until RO readjudication de novo of the claim for service connection for diabetes mellitus, for purposes of accrued benefits, has been completed pursuant to the change in VA regulation, 38 C.F.R. § 3.309(e), effective May 8, 2001. In the August 2005 remand, the Board specifically directed that the AOJ readjudicate the claim for service connection for diabetes mellitus for purposes of accrued benefits. There is no indication in the record that the AOJ readjudicated the claim for service connection for diabetes mellitus for purposes of accrued benefits. The Board is obligated by law to ensure that the AOJ complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the Board notes that some partial development was completed. This includes sending the claims folder for review by a VA specialist who provided an opinion as to whether it is at least as likely as not that diabetes mellitus contributed to the veteran's death. Specifically, the Board notes that the VA examiner in June 2006 concluded that diabetes mellitus was clinically demonstrated during the veteran's life time and that his diabetes mellitus did not at least as likely as not contribute to the veteran's death. However, in reaching such conclusion, the examiner failed to reconcile the VA opinion with the October 2003 opinion written by L.G., M.D., which stated that it was as likely as not that the veteran's diabetic condition contributed to his death. The Board, in its August 2005 remand instructions explicitly requested that the VA examiner comment on the October 2003 private opinion. The June 2006 opinion notes that the examiner reviewed this private opinion, but it does not address it. Stegall, 11 Vet. App. at 271. Additionally, subsequent to the August 2005 Board remand, the appellant submitted a March 2007 opinion written by C.N.B., M.D., that relates the veteran's diabetes to his Agent Orange exposure and opined that the diabetes "absolutely and significantly contributed" to the veteran's demise. In addition, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the disability rating and effective date of an award. In this appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate her claim for service connection, but she was not provided with notice of the type of evidence necessary to establish a disability rating or the effective date. As these questions are currently involved, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that informs the appellant that a disability rating and effective date will be assigned in the event of award of benefits, and also includes an explanation of the type of evidence needed to establish a disability rating and effective date. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to service connection for diabetes mellitus in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2006), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and any other applicable legal precedent. Include an explanation of the information and evidence needed to establish a disability rating and effective date in the event of award of any benefit sought, per Dingess/Hartman. 2. Before completing the development below, the agency of original jurisdiction (AOJ) must readjudicate the claim for service connection for diabetes mellitus for purposes of accrued benefits. If the decision with respect to the claim for service connection for diabetes mellitus for purposes of accrued benefits is adverse, and the appellant files a timely notice of disagreement, she and her representative should be furnished a statement of the case and provided an opportunity to respond. The appellant and her representative are apprised that a timely appeal must be completed to warrant appellate consideration of the issue by the Board. 3. Upon completion of the above, forward the claims folder to the June 2006 VA examiner, or if unavailable, an appropriate VA specialist, to review the claims folder and reconcile the October 2003 and March 2007 private examiner opinions with the June 2006 VA opinion. If the VA examiner who provided the opinion in June 2006 is not available, then another comparably qualified VA examiner may respond to this inquiry. After reviewing the veteran's claims folder, the VA examiner should furnish an opinion as to whether it is at least as likely as not that diabetes mellitus contributed substantially or materially to the veteran's death, or aided or lent assistance to the production of his death, or hastened death. In rendering such opinion, the VA examiner must explicitly address Dr. C.N.B.'s March 2007 opinion, as well as the earlier October 2003 statement written by Dr. L.G. All opinions should be accompanied by a clear and detailed rationale consistent with the evidence of record. The examination report should clearly indicate that a review of the claims file was performed in conjunction with this inquiry. 4. Thereafter, readjudicate the issue of entitlement to service connection for the cause of the veteran's death and consider all evidence. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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) (2006).