Citation Nr: 0814845 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 94-43 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service between June 1958 and July 1987. He died in March 1993 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1993 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this matter several times before in order to afford the appellant the appropriate development of her claim. While the delay is regrettable, the matter must again be remanded to preserve due process rights as set out by VA regulation and the United States Court of Appeal for Veterans Claims (CAVC). 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 Under 38 C.F.R. § 3.159(c)(1), VA has a duty to assist an appellant by making reasonable efforts to help the claimant obtain records not in the custody of a federal department or agency, including private medical care providers. In this case, immediately prior to his death, the veteran was treated at the North Florida Regional Medical Center, in Gainesville, Florida. See veteran's January 1993 claim, and March 1993 death certificate. A review of the claims folder reveals that the records from this private treatment facility have not been obtained and associated with the claims folder. In order to ensure that VA's duty to assist the appellant under 38 C.F.R. § 3.159(c)(1) is met, this matter must be remanded for additional development. A review of the claims folder also reveals that the appellant was afforded a VA opinion as to the likelihood that the veteran's cause of death manifested during service, or within one year of service. The November 2007 opinion in the claims folder answers these questions essentially in a yes/no fashion, with very little elaboration or discussion as to the basis of the opinion. Such an opinion is inadequate for rating purposes. The claims folder must be returned to a qualified VA examiner for an addendum opinion with a complete rationale. Also, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim for service connection for the cause of the veteran's death, the United States Court of Appeal for Veterans Claims (CAVC) has held that 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, a rating decision following the veteran's March 1993 death awarded service connection for hypertension and gout, effective January 22, 1993, a date prior to his death. See June 1993 rating decision. To date, VA has not provided the appellant with notice consistent with the CAVC's holding in Hupp. There has been no notice of the conditions for which the veteran was service connected, or discussion of the specific evidence and information required to establish the appellant's claim. This must be accomplished. Accordingly, the case is REMANDED for the following action: 1. Send the appellant and her representative 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 (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. 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. 2. Ensure that VA's duty to assist under 38 C.F.R. § 3.159(c)(1) is met by obtaining fully executed authorizations to obtain records from any relevant private treatment facility, including but not limited to the veteran's 1993 treatment at the North Florida Regional Medical Center, in Gainesville, Florida. Obtain all relevant records and associate them with the claims folder. 3. Once the record is complete, obtain an addendum to the November 2007 VA opinion, which takes into account all relevant evidence of record. The opinion should be from a qualified VA physician/examiner. Even if the records requested are not forthcoming, an addendum to the November 2007 nurse practitioner's opinion is required in order that the examiner provide an opinion that includes consideration using the proper standard and in depth rationale discussing the basis for the opinions presented. The examiner should provide an opinion regarding the etiology of the veteran's multiple myeloma by addressing the following question: is it more likely than not (i.e., probability greater than 50 percent)), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the veteran's multiple myeloma manifested during service or within one year of service or is in any other way related to service? Again, a complete rationale should be provided for any opinion expressed. 4. Readjudicate the appellant's claim. If the benefits sought on appeal remain denied, the appellant and her accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. 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 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). _________________________________________________ MARJORIE A. AUER 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).