Citation Nr: 0815078 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-03 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for lung cancer/lung condition, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Richard J. Mahlin, Attorney at Law ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from May 1955 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and July 2005 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 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 Unfortunately, remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. The veteran died at home in February 2005, from small cell lung cancer, according to his death certificate. Prior to the veteran's death, he was service connected for Meniere's disease with deafness, vertigo, and tinnitus, rated as 100 percent disabling from November 1998, and for major depressive disorder, rated as 70 percent disabling from May 2001. The United States Court of Appeals for Veterans Claims (Court) held in July 2007 in Hupp v. Nicholson, 21 Vet. App. 342, 352-53, that when adjudicating a claim for dependency and indemnity compensation (DIC), VA must perform a different analysis depending on whether a veteran was service-connected for a disability during his or her lifetime, and concluded generally, that 38 U.S.C.A. § 5103(a) notice for a DIC claim 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 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. Based on the Board's preliminary review of the claim for service connection for the cause of the veteran's death and the April and October 2005 notice provided to the appellant pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103a, 5107 (West 2002 & Supp. 2007) (VCAA), the Board finds that a remand is warranted so that the appellant can be provided with a new VCAA notice letter that complies with the Court's holding in Hupp. The appellant should also be sent adequate VCAA notice concerning her claim for service connection for lung cancer/lung condition for accrued benefits purposes. Specifically, this notice should include information concerning what the evidence must show to establish entitlement to service connection for lung cancer/lung condition. The Board notes that the initial records of treatment for the veteran's fatal small cell lung cancer do not appear to be of record. The only medical records which have been submitted concerning his lung cancer are dated between October 2003 and August 2004, and it appears that there might have been some earlier and later treatment. Attempts should be made to obtain all available treatment records for small cell lung cancer. Finally, the RO/AMC should obtain copies of the veteran's complete service personnel records. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with a VCAA notice letter concerning her cause of death claim, noting (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 the cause of death claim based on the veteran's previously service-connected conditions, and (3) an explanation of the evidence and information required to substantiate the cause of death claim based on the conditions not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53. The appellant should also be sent VCAA compliant notice concerning her claim for service connection for lung cancer/lung condition, for accrued benefits purposes. Specifically, this notice should include information concerning what the evidence must show to establish entitlement to service connection for lung cancer/lung condition. 2. Make arrangements to obtain copies of the veteran's complete service personnel records. 3. Ask the appellant to identify all VA and non-VA medical care providers that treated the veteran for lung cancer during his lifetime. Make arrangements to obtain all relevant records that she adequately identifies. 4. Finally, readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ P.M. DILORENZO 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).