Citation Nr: 0814168 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-32 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from April 1969 to November 1972. The veteran died in December 2000. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 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 In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, the United States Court of Appeals for Veterans Claims (Court) has held section 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The notice should 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. In this case, the veteran was not service connected for any disability during his lifetime. He died in December 2000 due to massive gastrointestinal hemorrhage due to or as a consequence of peptic ulcer disease. While the RO sent notices dated in July 2002, July 2004, and April 2007, they did not comply with the Court's holding in Hupp. On remand, this must be accomplished. In this case, the appellant asserts that the veteran's cause of death was due to a staph infection he contracted while hospitalized at the VA for treatment of his hip. Based on her contentions, it is determined that entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 is a component of the present cause of death claim. Accordingly, the RO must consider those provisions in readjudicating the appeal. Furthermore, it is determined that a medical opinion must be obtained in order to satisfy the requirements of 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) (2007). As such, the case should be referred to a VA physician to determine whether the proximate cause of the veteran's death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA hospital care or medical treatment. Additionally, while service medical records are negative for any findings or complaints of a gastrointestinal disorder, the examiner should also address whether it is at least as likely as not that the veteran's cause of death was causally related to active service. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the appellant's claim. The notice should include an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The letter should indicate which portion of the evidence, if any, is to be provided by the appellant and which portion, if any, VA will attempt to obtain on her behalf. The letter should also request that the appellant provide any evidence in her possession that pertains to the claim. 2. Send the claims folder to an appropriate specialist to determine whether the veteran's cause of death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA hospital care or medical treatment; or related to his active service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed. The examiner should answer the following questions: a) Based on a review of the claims file, is there a 50 percent probability or greater that the veteran's death due to or the result of, or is otherwise related to, his VA hospitalization (treatment for his hip)? b) Is there a 50 percent probability or greater that the VA personnel displayed carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment? The examiner should specifically address the appellant's contention that the veteran developed a staph infection subsequent to his treatment. c) Is there a 50 percent probability or greater that the proximate cause of the veteran's death was an event which was not reasonably foreseeable by VA medical care providers in providing the treatment in question based on what a reasonable health care provider would have seen? d) The examiner should also provide an opinion as to whether there is a 50 percent probability or greater that the veteran's cause of death was related to his period of active service. He/she should provide the rationale for all opinions provided. 3. Following completion of the above, readjudicate the appellant's claims on appeal, to include adjudication under the provisions of 38 U.S.C.A. § 1151. If the benefits sought on appeal are not granted, then issue a supplemental statement of the case and provide the appellant an opportunity to respond. 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). _________________________________________________ ERIC S. LEBOFF Acting 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).