Citation Nr: 0810306 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-03 345A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from March 1946 to March 1970. He died in October 2003; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the appellant initially claimed entitlement to service connection for the cause of the veteran's death based upon the contention that the veteran's death was, in part, the result of exposure to herbicides in service. However, in the January 2008 Hearing Memorandum, the appellant's representative asserted that the cause of the veteran's death may have been the result of exposure to radiation during Operation HARDTACK I. The Board is of the opinion that the two theories advanced on the issue of entitlement to service connection for the cause of the veteran's death are inextricably intertwined, and as such, the entire claim is remanded for additional development, as indicated below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With respect to the appellant's claim generally, the Board notes that the record does not contain any of the terminal treatment reports from Lynchburg General Hospital for the veteran. In addition, the appellant maintains that there are missing service personnel records, which would show that the veteran served in country in Vietnam. The appellant has submitted a copy of document reflecting the veteran's duty assignments, but the RO has not attempted to obtain the complete personnel file of the veteran. Therefore, both the terminal treatment reports and the veteran's personnel file should be obtained. With respect to the theory of entitlement to service connection for the cause of the veteran's death based upon radiation exposure, the appellant claims that the veteran was exposed to radiation during his participation in Operation HARDTACK I, which reportedly took place from April 28, 1958, to October 31, 1958. The record does not reflect that the RO has complied with the notification requirements of the VCAA or the implementing regulations in this regard. Specifically, the RO has not informed the appellant of the provisions of 38 C.F.R. § 3.311 pertinent to her claim based on exposure to ionizing radiation. In addition, the RO has not had the opportunity to do any necessary development regarding the claimed radiation exposure Additionally, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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 degree of disability and the effective date of an award. In the present appeal, the appellant was not provided with notice of the type of information or evidence necessary to establish a disability rating or effective date her service connection claim. In addition, the Court in Hupp v. Nicholson, 21 Vet. App. 342 (2007), has held that generally, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Thus, corrective notice can be provided on remand. Accordingly, the case is REMANDED for the following action: 1. The RO should send the appellant corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which advises her of the evidence necessary to establish the claim for service connection for cause of death based on exposure to ionizing radiation under 38 C.F.R. § 3.311 and includes explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined in Dingess/Hartman, as well as an explanation as to the information or evidence needed to establish a claim for service connection for the cause of the veteran's death, as outlined by the Court in Hupp. The letter should also inform the appellant that she should submit any competent evidence supporting her contention that the veteran was exposed to ionizing radiation in service. 2. The RO should then undertake appropriate development to obtain any pertinent evidence identified but not provided by the appellant, to include obtaining a copy of the veteran's entire personnel file. With the appellant's assistance, the RO should also obtain all of the terminal hospital records from Lynchburg General Hospital for the veteran and associate them with the claims file. If the RO is unable to obtain any pertinent evidence identified by the appellant, it should so inform her and request that she submit the outstanding evidence. The RO should also conduct all other necessary development required by 38 C.F.R. § 3.311 as it pertains to the claim for service connection for the cause of the veteran's death due to exposure to ionizing radiation. 3. Then, the RO should review any additional evidence and readjudicate the claim under all appropriate statutory and regulatory provisions and legal theories. If the benefit sought on appeal remains denied, the appellant and her representative must be provided with a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is otherwise notified, but she has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ K. J. ALIBRANDO Acting 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) (2007).