Citation Nr: 0812401 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-39 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from July 1948 to January 1969. 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 Atlanta, Georgia, which denied the above claim. The appellant was scheduled to appear for a hearing before a Veterans Law Judge in March 2008; however, she failed to appear. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. The appellant seeks service connection for the cause of the veteran's death. The veteran died in March 2002, and according to his death certificate, which was certified by Eddie L. Whitehead, M.D., he died of respiratory failure due to, or as a consequence of metastatic pancreatic carcinoma, "MIS. to lungs, liver." There is no indication from the claims file that, at the time of his death, the veteran was service connected for any disability. The appellant now claims that the veteran's death was caused by Agent Orange exposure during his service in Vietnam. In October 2002, Dr. Whitehead submitted a letter stating that 1) the veteran was in his medical care during the illness leading to his death, 2) the veteran died from cancer metastasis involving the lungs, liver, and pancreas, and, 3) the lungs were most involved leading to the veteran's respiratory failure. Dr. Whitehead did not provide any reasons or bases for this conclusion. No other treatment records from Dr. Whitehead have been associated with the claims file. Also of record is Cytology Report dated in March 2002 showing a diagnosis of carcinoma, most consistent with pancreaticobiliary primary. Additionally, a February 2004 letter from the Georgia Cancer Specialists has been associated with the claims file, stating that, Having monitored the life and death of [the veteran], it is my professional opinion that the causes listed for death on his death certificate, were more than likely manifested by his duty in Vietnam and exposure to Agent Orange. This opinion, however, appears to be incomplete insofar as the signature line is illegible and the letter itself fails to indicate that the veteran's medical or military history had been reviewed before the opinion was rendered, or to provide any other basis for the opinion. Further, no treatment records from the Georgia Cancer Specialists have been associated with the veteran's claims file to support this opinion. Complete treatment records from both Dr. Whitehead and the Georgia Cancer Specialists should be obtained before the Board renders a decision in this case. The veteran was also hospitalized at Emory Northlake Regional Hospital at the time of his death, and these records should be obtained. Additionally, a VA medical opinion is necessary in this case to clarify the cause of the veteran's death. Further, the veteran's complete service personnel records should be obtained on remand. Finally, in March 2003, the RO attempted to provide the appellant with adequate notice of the elements necessary to substantiate her claim for benefits; however, the letter did not include a statement of the conditions, if any, 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, or an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Given the deficiencies in the March 2003 letter, notice compliant with 38 U.S.C.A. § 5103(a) and the holding in Hupp v. Nicholson, 21 Vet. App. 342 (2007) should be issued before the Board renders a decision in this case. Accordingly, the case is REMANDED for the following action: 1. Send the appellant notice of (1) the fact that the veteran was not service connected, nor had any pending service connection claims, at the time of his death; and (2) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. 2. Ask the appellant to identify all medical care providers that treated the veteran for cancer during his lifetime, and make arrangements to obtain these records. This should include efforts to obtain the veteran's complete treatment records from Eddie L. Whitehead, M.D., the Georgia Cancer Specialists, Emory Northlake Regional Hospital, and DeKalb Medical Center. 3. Make arrangements to obtain the veteran's complete service personnel records. 4. Thereafter, arrange for a VA specialist in oncology to review the claims folder and provide an opinion on the following: What was the primary tumor/site of origin of the veteran's cancer? Concerning the cancer of the lung, was this a primary site, or a metastasis? The doctor should also provide an opinion concerning whether it is at least as likely as not that any of the veteran's cancers (i.e., of the pancreas, primary bile duct, lung, liver) were related to service, including exposure to herbicides. The doctor must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Finally, readjudicate the appellant's claim on appeal. If the claim remains denied, provide the appellant and her representative with a supplemental statement of the case and allow an appropriate time for response. 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). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ P.M. DILORENZO 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).