Citation Nr: 0813565 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-30 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from October 1942 to November 1945. The veteran was a veteran of World War II and was a prisoner of war. The veteran died in March 2006; the present appellant is the veteran's widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that denied service connection for the cause of the veteran's death. Also on appeal is an August 2006 letter decision by the RO that declined to accept the appellant's claim for accrued benefits. The appellant testified before the RO's Decision Review Officer (DRO) in May 2007. In April 2008 a Deputy Vice Chairman of the Board granted the motion of the appellant's representative for advancement of the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a) (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). 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 on her part. REMAND The Board has determined that additional development is required on both issues on appeal prior to appellate review by the Board. As a decision on the issue of accrued benefits would have a significant impact upon the issue of service connection for the cause of the veteran's death, and as that impact in turn could render any present review of the decision on the claim for cause of death meaningless and a waste of appellate resources, the two claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). In regard to the claim for accrued benefits: as reflected in the SSOC dated in September 2007, the RO adjudicated the issue of earlier effective date for a TDIU as an unresolved claim because the veteran's death in March 2006 occurred within the one-year appeal period after the July 2005 rating decision. However, the same July 2005 rating decision granted service connection for hypertension (rated as 10 percent disabling) and denied service connection for heart disease and for vascular disease, so these issues are equally unresolved. Therefore, in order to establish whether any accrued benefits are payable, the RO must also adjudicate the unresolved issues of entitlement to an increased initial evaluation for hypertension, service connection for heart disease, and service connection for vascular disease. In regard to the claim for service connection for the cause of the veteran's death: the Board finds it necessary to obtain medical opinion as to whether the veteran's service- connected PTSD and/or hypertension - plus any disorder that is service-connected as a result of the RO's resolution of the "accrued benefits" issues above - caused or substantially or materially contributed to cause the veteran's death. To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.3 12(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The veteran's death certificate reflects the immediate cause of death as dementia; no underlying causes of death are listed. The VA treatment record regarding the veteran's terminal inpatient treatment (December 2005 to March 2006) shows a final diagnosis of end-state dementia, aspiration, urinary tract infection, and urinary retention; the VA treatment records also show a history inter alia of hypertension, abdominal aortic aneurysm (AAA), brain aneurysm and vascular dementia. At the time of his death the veteran was service-connected inter alia for PTSD (rated as 70 percent disabling) and hypertension (rated as 10 percent disabling). As the veteran is a former prisoner of war, service connection may also be presumed for atherosclerotic heart disease and its complications (including myocardial infarction, congestive heart failure, or arrhythmia) and/or for stroke and its complications. See 38 C.F.R. § 3.309(c). The appellant testified that the veteran had a history of strokes, and she believes that the residuals of those strokes contributed to the veteran's death. There is no medical evidence of record addressing whether the veteran's service-connected PTSD or hypertension, or any disorder for which service connection may presumptively be granted to a former prisoner of war, caused or materially contributed to the veteran's death, and the Board is not competent to make any inferences as to medical etiology without a solid foundation on the record, grounded in medical evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Accordingly, the Board finds that a remand to the RO to obtain a medical opinion is needed to fairly resolve the claim on appeal. See 38 U.S.C.A. § 5103A. The Board notes at this point that the veteran had a VA POW protocol examination in May 2004 that was considered in previous adjudications by the RO. However, a DIC claim is a new claim and the merits thereof may be considered without consideration of "new and material evidence." To ensure that all due process requirements are met, prior to arranging for the requested medical opinion, the RO should also give the appellant opportunity to present additional information and/or evidence pertinent to the claim on appeal. The RO's notice letter should explain that the appellant has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all evidence in her possession that is not already of record, and ensure that its notice to the appellant meets the requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate Further, the Board notes that because the RO's adjudication of a DIC claim hinges first on whether a veteran was service- connected for any condition during his or her lifetime, the VCAA notice in such a claim must include (1) a statement of the conditions, if any, for which the 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 condition previously service-connected, and (3) an explanation of the evidence and information needed to substantiate a DIC claim based on a condition not previously service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent evidence not currently of record that pertains to the veteran's death. The RO's letter should invite the appellant to furnish all evidence in her possession, and identify what evidence is ultimately her responsibility to obtain. The RO should ensure that its letter meets the requirements of the decisions in Dingess/Hartman v. Nicholson and Hupp v. Nicholson, cited to above, as appropriate The RO's letter should clearly explain to appellant that she has a full one- year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for her response has expired, the RO should adjudicate the issues of entitlement to an initial rating for hypertension higher than 10 percent, service connection for heart disease, and service connection for vascular disease based on all the evidence of record. To the extent that any of these unresolved claims are denied, the RO should issue the appellant and her representative an appropriate SSOC. 4. Thereafter, the RO should forward the claims file for review by a physician with expertise in cardiovascular disorders (or other appropriate VA physician) at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician, and the physician's report should reflect consideration of the veteran's documented medical history and the appellant's assertions. Considering the record, to particularly include the VA POW protocol examination in May 2004, records of medical treatment immediately prior to the veteran's death, and the cause of death cited by the death certificate, the physician should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's service-connected disabilities, any presumptive history of atherosclerotic heart disease, and/or any presumptive history of stroke either caused or substantially or materially contributed to cause the veteran's death. The reviewing physician should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. If the reviewing physician cannot provide the requested opinion without resorting to speculation, he or she should clearly so state. 5. To help avoid future remand, RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the required actions, and any additional notification and/or development deemed warranted, RO should adjudicate the appellant's claim for service connection for the cause of the veteran's death in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal is not granted, the RO should furnish to the appellant and her representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them a reasonable opportunity to respond before the claims file is returned to the Board for further appellate review. The purpose of this REMAND is to afford due process; it is not the Board's intention to imply whether the benefits requested should be granted or denied. The appellant need take no action unless otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ CHERYL L. MASON 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).