Citation Nr: 0810990 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-35 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to accrued benefits. 3. Entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971. The veteran is deceased and the appellant is the surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2005, the appellant testified before a hearing officer at the RO. The appellant was scheduled for a Board hearing in Washington, DC. However, in a February 2008 correspondence, her representative informed the Board that she no longer wished to have a hearing. Thus, her request for a hearing before a member of the Board is considered withdrawn. See 38 C.F.R. § 20.704 (2007). On another matter, in an October 22, 2007 statement of the case, the RO addressed the issue of the denial of entitlement to service connection for the cause of the veteran's death under 38 U.S.C. § 1151. On that same day, a VA Form 646 was prepared by the service organization, which did not offer any comment on this issue. Thus it is unclear whether such was intended to be a substantive appeal. This matter is referred to the attention of the RO to determine whether such constitutes a timely filed and adequate substantive appeal to the § 1151 issue. See 38 C.F.R. §§ 20.202, 20.302 (2007). 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 on her part. REMAND At the time of his death, the veteran had been pursuing a claim of entitlement to service connection for hepatitis C. An August 2002 VA examination report reflects the veteran's history of IV (intravenous) drug use, which started in service and continued for 10 years thereafter, and sex with prostitutes after separation from service. The veteran denied a history of blood transfusions. Given the above, the examiner stated that the veteran has two risk factors for hepatitis C. In a February 2003 correspondence, the veteran stated that he served as a medic in Germany during the Vietnam War and cited the following in-service risk factors for hepatitis C: drawing blood, starting IVs, assisting in spinal taps, treating patients with rashes and other diseases, assisting in amputations, assisting in live births, treating the injured and dealing with various bodily fluids. His DD 214 form reflects that he was a medical specialist. In a May 2003 report, the examiner who conducted the above examination stated that she had been asked to render an opinion as to which of the risk factors that the veteran had provided in the examination led to his hepatitis C. The examiner stated that the veteran had given two risk factors, a history of IV drug use, which started in service and continued for 10 years thereafter, and promiscuous sexual activity with prostitutes after discharge from service. She stated that she cannot determine which risk factor led to his hepatitis C but noted that IV drug use has a slightly more increased chance of leading to hepatitis C than sexual transmission. The Board observes that consideration has not been given to the veteran's reported in-service risk factors (other than IV drug use). Thus, a medical opinion that includes consideration of those risk factors should be obtained. The veteran's certificate of death lists the immediate cause of death as sepsis due to or as a consequence of liver failure. The appellant contends, in essence, that the cause of the veteran's death is related to his service-connected undifferentiated somatoform disorder. She essentially asserts that his psychiatric disability delayed the treatment needed for his hepatitis C and cirrhosis. In support thereof, she has pointed to VA treatment notes that reflect that approval from a psychiatrist was needed prior to the administration of interferon, which can exacerbate depression. Given the above, a medical opinion should also be obtained on whether the veteran's service-connected undifferentiated somatoform disorder aggravated his hepatitis C and/or contributed to his death. In August 2005, the RO received records from University Hospital. However, neither the rating decision nor statement of the case reflects that those records were considered. Furthermore, the certificate of death lists University Hospital as the facility where the veteran had been an in- patient when he died. However, although the records from University Hospital contain numerous reports of diagnostic tests, they do not contain any treatment notes by nurses or physicians. As such terminal hospital records may be relevant to this case, another attempt should be made to obtain any treatment notes. The record also reflects that there may be outstanding VA medical records relevant to this case. The Board notes that the RO twice obtained and associated with the claims file records from the East Orange VA Medical Center (MC). In July 2005, the appellant submitted records from the above VAMC. Although most of them were duplicates of those already of record, others were not previously of record and still others were missing subsequent pages. In this regard, the Board observes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, treatment notes from the above VAMC not previously of record should be obtained and associated with the claims file. Lastly, the Board observes that further development is required under the Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant has not been informed of the information and evidence needed to substantiate claims for accrued benefits or Dependents' Educational Assistance, or given the notice as required by Dingess/Hartman, 19 Vet. App. 473. Moreover, as this appeal concerns a claim of service connection for the cause of the veteran's death, the Board has also considered the Court's holding in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the Court determined that VCAA notification in such cases 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. Id. Thus, corrective notice can be provided on remand. Accordingly, the case is REMANDED for the following actions: 1. Send the appellant and her representative a VCAA notice for the issues of entitlement to accrued benefits and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. Send the appellant and her representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information and evidence needed to establish a disability rating and an effective date. 2. Obtain and associate with the claims file any pertinent records adequately identified by the appellant. Make another attempt to obtain the veteran's terminal hospital records from University Hospital, specifically treatment notes by nurses and physicians. Associate with the claims file all treatment notes from the East Orange VAMC not previously of record. 3. Refer the veteran's claims file to a VA physician(s) with appropriate expertise to obtain an opinion on whether the veteran's hepatitis C is related to service, to include his duties as a medic, which he described as: drawing blood, starting IVs, assisting in spinal taps, treating patients with rashes and other diseases, assisting in amputations, assisting in live births, treating the injured and dealing with various bodily fluids, or whether it is more likely to have resulted from IV drug use or sexual contact. The physician(s) should also provide an opinion on whether the veteran's service-connected undifferentiated somatoform disorder aggravated (permanently worsened beyond the normal progress of the disorder) his hepatitis C and/or contributed to his death. The physician(s) should express such opinions in terms of not likely (less than 50% probability), or at least as likely as not (50% probability or better) and should set forth the complete rationale for all opinions expressed and conclusions reached. 4. After the above development has been completed to the extent possible, readjudicate the claims. This review should include consideration of records from University Hospital received in August 2004. If any benefit sought on appeal remains denied, the appellant and her representative should be issued a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ N. R. Robin 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).