Citation Nr: 0809907 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 03-32 803 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky 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 David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from February 1944 to December 1945. He died in October 2001, and the appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision by the RO. By that decision, the RO, in pertinent part, denied service connection for the cause of the veteran's death. This case was previously before the Board in May 2006, when it was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c). For the reasons set forth below, the case is again being REMANDED. REMAND When this case was remanded in May 2006, the Board requested, among other things, that the appellant be provided a notice letter pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)), that specifically informed her of the information and evidence required to substantiate a claim for service connection for the cause of the veteran's death on a secondary basis. The Board also requested that the appellant's case be referred to a VA physician for purposes of obtaining an opinion as to whether the veteran's service- connected disabilities contributed to his death. Thereafter, the appellant's claim was to be readjudicated. If the benefit sought remained denied, she was to be furnished a supplemental statement of the case (SSOC) that contained, among other things, the text of 38 C.F.R. § 3.310. Unfortunately, the requested development has not been fully completed. Although the agency of original jurisdiction sent the appellant several VCAA notice letters subsequent to the Board's remand, none of those letters contained notice of the information and evidence required to substantiate a claim for service connection for the cause of the veteran's death on a secondary basis. See also Hupp v. Nicholson, 21 Vet. App. 342 (2007) (setting out further notice requirements for cause of death claims). No clear opinion was obtained with respect to the appellant's contention that the veteran's service- connected coronary artery disease made him less capable of resisting the effects of terminal cancer, and the SSOC furnished to the appellant did not include the text of 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (2007). For the reasons stated, this case is REMANDED for the following actions: 1. Send a new VCAA notice letter to the appellant and her representative. The letter must contain notice of the information and evidence required to substantiate a claim for service connection for the cause of the veteran's death on a secondary basis. 38 C.F.R. § 3.310. The letter must also contain all of the information required by Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant and her representative should be given a reasonable opportunity to respond to the notice, and any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. After the foregoing development has been completed, arrange to have the veteran's claims file returned to the VA examiner who provided an opinion in this case in October 2007. The examiner should review the claims file and offer a specific opinion as to the medical probability that the veteran's service-connected disabilities (anxiety reaction and coronary artery disease with stable angina and hypertension) contributed substantially or materially to his death, combined to cause his death, or aid or lent assistance to the production of his death, to include by making him less capable of resisting the effects of terminal cancer. The examiner should also comment on the statement made by a VA examiner in December 2006 to the effect that the veteran's use of nitroglycerin for service-connected angina could have placed him at increased risk for developing esophageal cancer. If the examiner who provided the October 2007 opinion is no longer employed by VA, or is otherwise unavailable, arrange to obtain the necessary information from another examiner. A complete rationale should be provided for all opinions expressed. 3. Thereafter, take adjudicatory action on the appellant's claim. If the benefit sought remains denied, furnish an SSOC to the appellant and her representative. The SSOC should contain, among other things, a citation to, and summary of, the former and current versions of 38 C.F.R. § 3.310. See Claims Based on Aggravation of a Nonservice- Connected Disability, 71 Fed. Reg. 52,744 (Sept. 7, 2006) (now codified at 38 C.F.R. § 3.310) (2007). After the appellant and her representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the appellant until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MARK F. HALSEY 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 Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2007).