Citation Nr: 0813635 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-24 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1946 to February 1949, from March 1950 to March 1953, and from May 1954 to October 1970. The veteran died on December [redacted], 2002. The appellant is the surviving spouse of the veteran. This matter is before the Board of Veterans' Appeals (Board) from an April 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the appellant's claim for service connection for cause of the veteran's death. The appellant timely filed a Notice of Disagreement (NOD) in March 2004. The RO provided a Statement of the Case (SOC) in May 2004 and thereafter, in July 2004, the veteran timely filed a substantive appeal. In October 2005, the RO provided a Supplemental Statement of the Case (SSOC). In a December 2006 rating decision, the appellant was granted entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound. Additionally, the appellant submitted a request to advance her case on the Board's docket pursuant to 38 C.F.R. § 20.900(c), which was granted in March 2008. In February 2000, the veteran filed a claim for an increased rating for his service-connected right arm disability. This issue is not developed for appellate consideration and is referred to the RO for appropriate action for the purposes of accrued benefits. See 38 U.S.C.A. § 5121(a) (2000). Other Matters In December 2002, the appellant filed a claim for burial benefits. Different benefits are provided depending upon whether the veteran's death was service-connected or nonservice-connected. See 38 C.F.R. § 3.1600. The appellant asserted on the application that the veteran's death was due to service. In a February 2003 rating decision, the RO granted nonservice-connected burial benefits. However, in an April 2003 decision, the RO denied service-connected burial benefits. The appellant has not filed a NOD with respect to this claim. Therefore, the service-connected burial benefits claim is not on appeal. In November 2004, the appellant filed a request to reopen her claim for nonservice-connected death pension benefits. In an October 2007 decision, the RO denied the claim. The Board notes that the one-year period for filing a NOD has not yet expired. See 38 C.F.R. § 20.302(a). In March 2008, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. 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 The Board finds that additional development is warranted to address the merits of the appellant's appeal for entitlement to service connection for the cause of the veteran's death. 38 C.F.R. § 19.9 (2007). A summation of the relevant evidence is set forth below. The veteran died in December 2002, with the immediate cause of death listed on the death certificate as infiltrative cardiomyopathy. End stage renal disease is listed as a significant condition that contributed to the veteran's death. The appellant contends that the veteran developed hypertension during service, and that this condition led to the development of renal disease. At the time of his death, the veteran was service connected for degenerative joint disease, status post left hip replacement, rated as 30 percent disabling; incomplete paralysis of the left sciatic nerve, rated as 20 percent disabling; right forearm, limitation of extension with traumatic arthritis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as zero percent disabling; deviated nasal septum, rated as zero percent disabling; and hemorrhoids, rated as zero percent disabling. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, such as cardiovascular-renal disease (to include hypertension), will be service-connected if the disease becomes manifest to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Service medical records show numerous blood pressure readings. Specifically, during a May 1954 examination, the veteran's blood pressure was 100/60. An October 1961 examination indicates that his blood pressure was 126/68. During a November 1962 examination, the veteran's blood pressure was 138/76. An August 1967 examination indicates that his blood pressure was 120/86. During an August 1969 examination, the veteran's blood pressure was 130/80. There is no indication of a diagnosis of hypertension. Service medical records are negative for any findings that were attributed to heart or renal disease. A June 1970 Report of Medical History reveals that the veteran reported an occasional feeling of pressure in his chest every six months. The veteran indicated that in April 1968 he was treated in a Munich hospital for this condition, but that it was "thought to be due to old injury as above (October 1963)." The Board notes that the veteran was involved in a motor vehicle accident in October 1963. It should be noted that the service medical records do not contain a retirement examination. A July 1966 treatment record indicates that the veteran complained of a headache and dizziness for 2-3 days. He denied any visual problems. His blood pressure was 155/70. The impression was headache. The claims file contains treatment records from VAOPC Oakland, VANCHCS Martinez, and VANCHCS Pleasant Hill from January 1999 to April 2000. These records indicate that the veteran had a history of hypertension, coronary artery disease, and chronic renal failure. May 1999 treatment records reveal that the veteran was taking hypertensive medication. During the March 2008 hearing, the appellant testified that the veteran developed hypertension and a heart condition during service. She stated that the veteran developed recurrent headaches, blurred vision, shortness of breath, changes in heart rate, fatigue, and urinary problems while he was stationed in France, which was sometime between 1960 and 1964. She further stated that after his retirement from the Army in 1970, the veteran received treatment for these symptoms from Letterman Army Medical Center; Okano Naval Medical Center; Travis Air Force Base Medical Center; Kaiser Permanente Oakland; VAOPC Oakland; VAOPC Martinez; and VAMC San Francisco. The appellant testified that the veteran began taking hypertensive medication during service and continued taking it for the remainder of his life. She contended that the hypertension caused the end stage renal disease that contributed to his death. It is apparent that there additional service and post-service medical records that have not been obtained that are relevant to this appeal. See transcript of March 2008 videoconference hearing, page 16. VA's duty to assist includes making reasonable efforts to obtain service and relevant post- service medical records. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1)(2) (2007). Consequently, on remand, the RO should attempt to obtain any additional service medical records that may be available and all post-service medical records identified by the veteran. Id. While it was indicated at the March 2008 Board hearing that the record will be held open for 60 days for the veteran to obtain and submit this additional evidence, he should be provided assistance to do so, particularly with regard to the service medical records. It is pertinent to note that VA's efforts to obtain service department records must continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) As the Board is remanding the issue for evidentiary development, the RO should also take steps to fulfill VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) to notify and assist the veteran with respect to his claim. The Court determined in Hupp v. Nicholson, 21 Vet App 342 (2007), that when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, 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 claim for service connection for the cause of the veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service- connected. In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. The September 2004 notification letter is deficient with respect to these requirements. The letter does not discuss the VCAA and is not "tailored" to the information provided by the appellant when she filed her application for DIC benefits. On remand, the VCAA notice must include: (1) a statement of the conditions for which the 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. See Hupp, supra. Finally, during the pendency of this appeal, on March 3, 2006, 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 provided with notice of what type of information and evidence was needed to substantiate her claim for service connection, but she was not provided with notice of the type of evidence necessary to establish an effective date for the benefit sought. As this question is involved in the present appeal, proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) should be provided that informs the appellant that an effective date for the award of benefits will be assigned if service connection for the cause of the veteran's death is awarded and also includes an explanation as to the type of evidence that is needed to establish an effective date. Accordingly, the case is REMANDED for the following action: 1. The notification letter should include an explanation under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 v. Nicholson, 21 Vet App 342 (2007). Such notice must be tailored to the specific information provided in the appellant's January 2003 claim for benefits. The AMC/RO should also provide the appellant with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish an effective date for the benefit sought as outlined by the Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). 2. Contact the NPRC and any other relevant federal records depository to determine if additional service medical records are available, to include a report of a discharge from service or separation examination and hospital records from April 1968. If such records are available, obtain them and place them into the claims file. If, after inquiry, it is apparent that the veteran's additional records are not in the custody of the federal government, annotate the record to reflect this. 3. Obtain and associate with the claims file VA medical records for the veteran from VAOPC Oakland, VAOPC Martinez, and VAMC San Francisco, dated from October 1970 to December 2002. 4. Once signed releases are received from the appellant, obtain outstanding private treatment records from Letterman Army Medical Center; Okano Naval Medical Center; Travis Air Force Base Medical Center; and Kaiser Permanente Oakland, from October 1970 to December 2002, and associate them with the claims file. A copy of any negative response(s) should be included in the claims file. 5. After completion of any other indicated development, to include whether an examination and/or medical opinion is warranted, the RO should readjudicate the issue of entitlement to service connection for the cause of the veteran's death. If the benefit sought on appeal remains denied, the appellant and her representative must be provided with an SSOC, which must contain a summary of the evidence received after the last SSOC was issued and notice of all relevant actions taken on the claim for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ R. F. WILLIAMS 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).