Citation Nr: 0810772 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 00-19 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1943 to October 1945. The veteran died in February 1979, and the appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied entitlement to service connection for the cause of the veteran's death for purposes of the appellant receiving dependency and indemnity compensation (DIC), on the basis that the appellant's claim was not well-grounded. The appellant perfected a timely appeal of this determination. In a May 2002 rating decision, the RO conducted a de novo review, in light of the enactment of the Veterans Claims Assistance Act (VCAA), of the issue of entitlement to service connection for the cause of the veteran's death for purposes of the appellant receiving DIC. In this May 2002 rating decision, the RO continued its denial of the appellant's claim based upon a review of the evidence of record. In August 2003, the Board remanded this case to the RO for further development. In July 2005, the appellant submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2007). For reasons explained below, this appeal is once again REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND To establish DIC for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service caused, or contributed substantially or materially to cause, that death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2007). The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that, in the context of a claim for DIC benefits, § 5103(a) notice must include: (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his 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. Hupp v. Nicholson, 21 Vet. App. 342, 352- 53 (2007). Here, the appellant has not received this required notice. According to the August 2003 Board remand instructions, VA was obligated to make arrangements with the appropriate VA medical facility for the claims file to be reviewed by an appropriate VA physician. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has held that, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Another remand is therefore necessary to ensure proper compliance with the Board's August 2003 remand instructions. See id. Accordingly, the case is REMANDED for the following actions: 1. VA should send the appellant a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the claim. The letter should indicate which portion of the evidence, if any, is to be provided by the appellant and which portion, if any, VA will attempt to obtain on her behalf. The letter should also request that the appellant provide any evidence in her possession that pertains to the claim. In addition, the letter should contain a statement of the conditions for which the veteran was service-connected at the time of his death, an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Finally, the letter should contain an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. VA should make arrangements with the appropriate VA medical facility for the claims file to be reviewed by an appropriate VA physician. (a). The physician must review the claims file and must state that he/she did so. (b). The reviewing physician should provide an opinion as to: (i) whether it is at least as likely as not that the veteran had a diagnosis of tuberculosis, verified by x-ray or other objective clinical testing, during his lifetime; (ii) whether it is at least as likely as not that the veteran had a diagnosis of tuberculosis, verified by x-ray or other objective clinical testing, within three years of his separation from military service and, if so, whether the tuberculosis was manifested to a compensable degree at this time; (iii) whether it is at least as likely as not that the pulmonary tuberculosis found in the August 1977 treatment record from Howard Hubbard Memorial Hospital, the November 1978 medical record from the SSA, and on the veteran's certificate of death was caused by the veteran's military service in the Republic of the Philippines from May 1943 to October 1945; and (iv) whether tuberculosis caused, or contributed substantially or materially to, any condition that ultimately led to the veteran's death. (c). All opinions provided must be reconciled with all other opinions of record including the findings made at the June 1945 separation examination and the diagnoses of pulmonary tuberculosis found in the August 1977 treatment record from Howard Hubbard Memorial Hospital, the November 1978 medical record from the SSA, and on the veteran's certificate of death. (d). A legible report must be associated with the record and must include all findings, along with the complete rationale for each opinion expressed and conclusion reached. 3. To help avoid future remand, VA must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above actions, VA should readjudicate the appellant's claim. If any determination remains unfavorable to the appellant, then she should be provided with a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters that the Board has remanded. 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). _________________________________________________ DEBORAH W. SINGLETON 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).