Citation Nr: 0814134 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-06 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) pursuant to 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Barbara J. Cook, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from November 1958 through July 1968. He died in January 2001 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the appellant's claims of service connection for the cause of the veteran's death and entitlement to DEA benefits. In June 2004, the appellant testified at a personal hearing before a Decision Review Officer (DRO) at the RO. A copy of the hearing transcript is associated with the claims file. The case was initially before the Board in January 2005, at which time, the Board remanded the matter back to the RO for additional development. After completion of the requested development, the case was returned to the Board for appellate review. The Board issued a decision denying the appellant's claim in March 2007. The appellant appealed the Board's March 2007 decision to the United States Court of Appeals for Veterans Claims (CAVC). While her claims were pending at the CAVC, the appellant's representative and the VA Office of General Counsel filed a Joint Motion in February 2008 requesting that the CAVC vacate the Board's decision and remand the case to the Board for further development and readjudication. In a February 2008 Order, the CAVC granted the Joint Motion and the case was returned to the Board. 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 appellant contends that service connection for the cause of the veteran's death is warranted. She asserts that the veteran's death-contributing diabetes mellitus and hypertension began during service. The current record does not support the appellant's contentions. The record reveals that the veteran was diagnosed with diabetes and hypertension during the 1970's, although he always maintained, during his lifetime, that his diabetes and hypertension began during service. In that regard, the veteran filed multiple service connection claims during his lifetime for hypertension and diabetes mellitus. All claims were denied because there was no evidence of record linking the hypertension and/or diabetes to service. Importantly, the veteran's claim for service connection for diabetes mellitus was denied by the Board in an August 1985 decision because diabetes mellitus was, in fact, not diagnosed until five years after separation from service, in 1973. Similarly, hypertension was not diagnosed until 1974. The competent medical evidence of record has never shown that the veteran's diabetes and/or hypertension began during service. According to the Joint Motion, the record in this case is incomplete. The record contains a March 1967 statement from the Interagency Board of U.S. Civil Service Examiners for North Alabama noting that the veteran's eligibility for a job as a food service worker was cancelled because of hypertension; however, there is no indication as to what medical records, if any, the Interagency Board of Civil Service Examiners relied upon in making the determination that the veteran had hypertension in 1967. The Joint Motion requires that VA obtain such records, if they exist, despite the fact that such attempt has already taken place during the veteran's lifetime. Specifically, in a February 1970 letter to the veteran, the RO explained that the 1967 document could not be considered medical nexus evidence, but that acceptable medical evidence might consist of a copy of the medical report or examination upon which that decision was based. The veteran was encouraged to submit any such evidence; however, the record reflects that no evidence, or authorization for VA to obtain such evidence, was subsequently received from the veteran. Additionally, the Joint Motion requires that VA attempt to obtain medical records from the Birmingham, Alabama VA Hospital from 1966 showing that the veteran had hypertension at that time. Finally, the Joint Motion requires the Board to discuss whether the veteran's in-service obesity may have caused the veteran's diabetes, given that excessive body weight is a risk factor for diabetes and the veteran was obese during service. Although obesity is certainly a risk factor in the development of diabetes, a discussion of whether the veteran's obesity may have led to his diabetes begs the question as to whether obesity is in fact a disability for which service connection may be granted. Moreover, even if a medical professional were to opine that the veteran's obesity in service as likely as not led to development of his diabetes after service, the fact remains that the medical evidence does not indicate that the diabetes began during service, or within a year following discharge from service. Moreover, any opinion regarding whether the veteran's in- service obesity caused his diabetes in this case would likely be based on speculation, given the record in this case. Nevertheless, as the Joint Motion requires such a discussion, a medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file all VA and/or private medical records concerning treatment for, and diagnosis of diabetes and/or hypertension during service or shortly thereafter that are not already of record, including, but not limited to VA treatment records from the Birmingham VA Medical Center in 1966 and any medical records used or relied upon by the Interagency Board of Civil Service Examiners in making the determination that the veteran had hypertension in 1967. If no such records can be located, so state, indicating what efforts were made to locate such records. 2. Obtain an opinion from an appropriate medical professional as to whether it is at least as likely as not that the veteran developed hypertension and/or diabetes during service. The opinion should include a discussion of whether the veteran's obesity is considered a disability, and if so, whether his in- service obesity as likely as not caused the veteran to develop diabetes years after service, given the facts in this case. The claims folder must be made available to and reviewed by the physician in conjunction with the requested opinion. 3. Following completion of the development requested, readjudicate the appellant's claims. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response. 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). _________________________________________________ RONALD W. SCHOLZ 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).