Citation Nr: 0935686 Decision Date: 09/21/09 Archive Date: 10/02/09 DOCKET NO. 98-18 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to dependency and indemnity compensation (DIC) benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 (previously 38 U.S.C.A. § 351) (West 2002 & Supp. 2008). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to service connection for the cause of the Veteran's death as secondary to nicotine dependence and inservice tobacco use. 4. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 (West 2002 & Supp. 2008). 5. Entitlement to Dependents' Educational Assistance under 38 U.S.C.A. § Chapter 35 based on a grant of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Stephen J. Mascherino, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to July 1945. He died in January 1986. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The procedural history as to the issues on appeal is lengthy and complicated. This history has been summarized and reported in previous Board decisions of record. Except for pertinent additions to this history, it will not be repeated here. In a November 2005 Board remand decision, each of the issues as listed on the title page of this decision (other than entitlement to service connection for cause of the Veteran's death as secondary to nicotine dependence and inservice tobacco use) was remanded for additional development. In August 2007, the claim of entitlement to service connection for the cause of the Veteran's death as due to nicotine dependence and inservice tobacco use was also remanded for additional development. The development requested as to all issues has been completed, and the claims are before the Board once again. The issues of whether new and material evidence has been received to reopen claims of entitlement to DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 and entitlement to service connection for the cause of the Veteran's death have been decided in the affirmative below. The reopened claims are addressed in the REMAND section of the decision. Additional issues on appeal to include entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 and entitlement to Dependents' Educational Assistance under 38 U.S.C.A. § Chapter 35 based on a grant of service connection for the cause of the Veteran's death are inextricably intertwined with the claim for service connection for cause of the Veteran's death and are also subject to the REMAND decision. These claims are REMANDED to the RO. FINDINGS OF FACT 1. A July 1995 rating decision denied service connection for DIC benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. The Appellant was notified of her procedural appellate rights by a July 1995 letter; however, she did not appeal the decision. 2. Evidence received since the July 1995 rating decision was not previously of record, relates to an unestablished fact necessary to substantiate the claim for DIC benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death, and it raises a reasonable possibility of substantiating the claim. 3. A March 1996 rating decision denied service connection for the cause of the Veteran's death. The Appellant was notified of her procedural appellate rights by a July 1995 letter; however, she did not appeal the decision. 4. Evidence received since the March 1996 rating decision was not previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. 5. The Certificate of Death reflects that the Veteran died on January [redacted], 1986, due to congestive heart failure, due to, or as a consequence of ischemic cardiomyopathy. A significant condition contributing to death but not related to the cause was chronic obstructive pulmonary disease (COPD). 6. At the time of the Veteran's death, service connection had been established for bilateral hearing loss, rated as 40 percent; tinnitus, rated as 10 percent disabling; and residuals of gunshot wounds (GSWs) of the left hand and left thigh, each rated as 10 percent disabling. The combined disability rating was 60 percent. 7. The competent evidence fails to show that nicotine dependence began or permanently increased in severity during service or that such caused or contributed to the cause of the Veteran's death. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for DIC benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death has been received; therefore, the claim is reopened. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.104(a), 3.156(a) (2008). 2. New and material evidence to reopen the claim of entitlement to service connection for the cause of the Veteran's death has been received; therefore, the claim is reopened. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.104(a), 3.156(a) (2008). 3. The Veteran's death was not caused or substantially or materially contributed to by in-service nicotine dependence and in-service tobacco use. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304, 3.312 (2008); VAOPGCPREC 19-97 (May 13, 1997(, 62 Fed Reg. 37954 (1997); VAOPGCPREC 2-93 (Jan. 13, 1993), 58 Fed. Reg. 42756 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a Claimant in developing the information and evidence necessary to substantiate a claim. VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Appellant from the RO (to include letters in June 2004, November 2004, June 2005, September 2007, and April 2008) specifically notified her of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Appellant and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Claimant about the information and evidence not of record that was necessary to substantiate her claims; (2) informing her about the information and evidence VA would seek to provide; (3) informing her about the information and evidence she was expected to provide; and (4) requesting that she provide any information or evidence in her possession that pertained to the claims. Also, VA has made reasonable efforts to assist the Appellant in obtaining evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2008). The information and evidence associated with the claims file consist of the Veteran's service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Claimant and her representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Claimant. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in letters dated in April 2008. In the context of a claim for DIC benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC Claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Where a Claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In the present case, adequate notice was provided by a letter dated in April 2008. New and Material Whether New and Material Evidence Has Been Received to Reopen a Claim of Entitlement to DIC Benefits for the Cause of the Veteran's Death Pursuant to the Provisions of 38 U.S.C.A. § 1151 The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). DIC for the cause of the Veteran death as a result of VA hospitalization and treatment under 38 U.S.C.A. § 351 (now 38 U.S.C.A. § 1151) was previously denied in an April 1987 rating decision. The Appellant was notified and a timely appeal was perfected. In a January 1989 Board decision, the RO's denial was confirmed. Thereafter, based on a subsequent change of the law, the claim for benefits pursuant to 38 U.S.C.A. § 1151 (formerly § 351) was reviewed de novo, and denied in a July 1995 RO decision. There was notice, but timely appeal was not perfected, and the decision is final. The July 1995 rating decision noted that it was the Appellant's primary contention that the Veteran underwent a rigid bronchoscopy at the VA facility in 1985 which damaged his heart muscles and his lungs. He underwent a subsequent flexible bronchoscopy caused breathing difficulty and eventual congestive heart failure. The Claimant stated that the move from the intensive care unit before the Veteran was ready to be moved contributed substantially to his death on January [redacted], 1986. Considered at the time of this denial were post service treatment records (STRs) which show a history of mild congestive heart failure secondary to ischemic heart disease, degenerative joint disease (DJD), right lower lobe pneumonia, arteriosclerotic heart disease, occlusive cerebrovascular disease, peripheral vascular disease, right lung tumor, abdominal aortic aneurysm, left hilar mass, COPD, and small aortic arch aneurysm. The RO specifically noted that VA records from May 1985 showed that the Veteran was admitted with a gradually enlarging left hilar mass which had been noted on X-ray the previous month. He was taken to the operating room in May 1985, where a flexible bronchoscope was inserted via the nasal route through the vocal cords. Brushing and washings of the left tracheobronchial tree were taken. The Veteran tolerated this procedure well, and he was taken to the recovery room in stable condition. A rigid bronchoscopy was performed during the same hospitalization on May 29, 2985. He experienced continuous nodal beats and occasional premature ventricular contractions. The procedure was stopped, and he was taken to the intensive care unit. In the 24 hours after the procedure, there were no electrocardiographic changes or abnormal cardiac enzymes. He declined further surgical attempts and was discharged on May 31, 1985. The Veteran was rehospitalized on September 11, 1985, for repeated bronchoscopy. A flexible bronchoscopy of the lungs was performed. He tolerated the procedure well and was discharged on September 18, 1985. He was hospitalized on October 23, 1985, mainly to get a computerized tomography (CT) chest scan. He was discharged in stable condition on October 30, 1985. The Veteran was again hospitalized in December 1985 with complaints of shortness of breath, wheezing, and a cough. At the time of admission, he was in moderate respiratory distress. Many chest X-rays were taken, most of which showed cardiomegaly and findings of congestive heart failure. He was admitted to the intensive care unit with the initial impression of congestive heart failure, possible cor pulmonale or secondary to heart disease. He continued to exhibit signs and symptoms of congestive heart failure. He received medications and by January 3, 1986, his heart had converted to sinus rhythm where he remained for 3-4 days. He was transferred out of the intensive care unit on January 7, 1986. His food intake, however, was poor, and he refused to have a feeding tube inserted. His condition gradually deteriorated, and he requested a do not resuscitate order if he suffered cardiorespiratory arrest. All other treatment was continued. The report reflects that a member of the Veteran's family caused nursing personnel to his bedside on January [redacted], 1986, in that he had no pulse. A physician was called, and the Veteran was pronounced dead on that date. In denying the claim in 1995, the RO noted that the Veteran died at age 75 of congestive heart failure due to ischemic cardiomyopathy. COPD was noted to be a contributory cause of death but not related to the immediate cause. The RO found that he had been treated in the mid 1980s for heart failure and disease. The flexible bronchoscopy was performed in 1985 to determine if there was a malignant tumor. No positive findings were reported. Therefore, a rigid bronchoscopy was performed. Review of the contemporaneous records from these hospital stays and procedures did not reflect any permanent damage to the Veteran's heart or lungs. The RO also determined that there was no evidence that showed that the Veteran's death in January 1986 resulted from his VA hospital treatment. The Appellant was notified of this decision in July 1995. The letter provided her with information as to her procedural and appellate rights. She did not appeal the decision, and it is final. 38 U.S.C.A. § 7105(a) (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.302, 20.2203 (2008). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the Appellant filed her claim seeking to reopen in January 2002, the Board has considered these provisions. To reopen a claim which has been previously denied and which is final, the Claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008). Under the amended regulations, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2008). The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Here, the Board notes that the RO did not reopen the Appellant's claim for DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151. The Board disagrees. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The evidence considered at the time of the July 1995 denial included the claim, the Veteran's STRs and post service private and VA treatment records dated from shortly after service until his death in 1986. The evidence associated with the claims file subsequent to the RO's 1995 denial that is not a duplicate includes a January 2002 statement as provided by a private physician, C.N.B., M.D., in which he opined that the Veteran's demise was caused by the poor substandard care that he received at the VA facility during his terminal hospital stay from December 1985 to January 1986. Specifically, the doctor stated that during the Veteran's terminal hospital stay, he received toxic doses of Theophyllin which caused supraventricular tachycardia. The Veteran's blood pressure then dropped, and he remained in atrial fibrillation with flutter. He became dyspneic with even minimal exertion, and chest X-rays showed findings consistent with congestive heart failure from which he expired. In forming his opinion, the doctor referenced several medical books at the end of his report, but he did not specifically note how this literature helped formulate his opinion. Also added to the record were VA examiner's opinions dated in November 2004 and June 2005. While the 2005 opinion specifically addresses the question of whether the Veteran's death was caused by a disability of service origin, the 2004 report specifically addresses the question of whether the Veteran's death was caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in providing care to the Veteran during his terminal illness. The 2004 report reflects that the examiner was requested to review the claims file, to include Dr. C.N.B.'s opinion as summarized above, and render an opinion as to whether or not the Veteran's death was caused by carelessness, negligence, lack of proper skill or error in judgment on the part of the VA in providing care to the Veteran during his terminal illness. After review of the file, the examiner noted that variations in Theophylline level as documented within the medical records during the Veteran's hospitalization were acknowledged. These were closely followed on a daily basis with either holding of next dose or alteration of the next dose where either a low or a high serum Theophylline was noted. The following of serum levels of Theophylline on a day-to-day basis serologically was routine because there could be a variation in concentration within the blood on a daily basis even when a constant concentration of intake was maintained. The examiner added that this physiologic variation of concentration was not reflective of poor care but was reflective of normal variations due to multifactorial biological processes. The VA examiner added that the documentation of lethal arrhythmias was not found in the course of hospitalization. A cardiology consult was made in light of the Veteran's deteriorating heart condition and no mention was made on the part of the treating cardiologist of any concern that Theophylline played in the Veteran's deteriorating heart condition. There was no indication that any clinical conditions, which contributed to the Veteran's death, were affected by the variations in Theophylline. The Theophylline levels were promptly noted when they were in either nontherapeutic levels or in higher concentration than therapeutically advisable and were appropriately corrected. There was no other indication in the clinical records of any inappropriate care or care that was below the standard of care that would have contributed to an earlier death on the part of the Veteran as secondary to his heart condition. Therefore, in summary, he opined that there was no indication of negligence, lack of proper care, error in judgment, or any similar instance of fault on the part of VA in furnishing appropriate care, treatment, and examination. Dr. C.N.B., submitted additional statement in October 2007 reiterating his contention from his January 2002 report that the expected outcome of the Veteran's terminal admission was not his demise, and that his care was substandard for his clinical situation and that this poor care caused his Veteran's early death. The doctor indicated that he read the supplemental statement of the case (SSOC) which summarized the VA opinion. He disagreed with the VA examiner's 2004 assessment that there was no indication of negligence, lack of proper care, error in judgment, or any similar instance of fault on the part of VA in furnishing appropriate care, treatment, and examination. As in his 2002 statement, he opined that the Veteran received toxic does of Theophyllin during his terminal hospital stay which contributed to his early demise. In further argument, he stated that the VA examiner did not refer to medical literature in forming his opinion as he had. It is the Board's opinion that Dr. C.N.B.'s 2002 and 2007 opinions raise a reasonable possibility as to the 38 U.S.C.A. § 1151 claim. Thus, the Board finds that this evidence is both new and material. Also considered new is the VA examiner's 2004 opinion. This evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for DIC benefits for the cause of the Veteran's death pursuant to the 38 U.S.C.A. § 1151. 38 C.F.R. § 3.308 (2008). New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claim is reopened. However, prior to consideration of the claim on the merits, additional development is necessary. Thus, for reasons explained in the REMAND below, this claim will be remanded. Whether New and Material Evidence Has Been Received to Reopen a Claim of Entitlement to Service Connection for the Cause of the Veteran's Death The Appellant seeks service connection for the cause of the Veteran's death. By rating decision in March 1986, the RO denied her claim, stating the evidence failed to show a relationship between the Veteran's service and his cause of death. At the time of the denial, the claims folder contained the Veteran's service treatment records (STRs), VA treatment records from 1986, and the death certificate. The Appellant did not appeal the denial; therefore, it is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). As noted earlier, once a decision becomes final, new and material evidence is required to reopen the claim which was denied. 38 U.S.C.A. § 5108 provides that "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2008). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). Through various decision of record, it was ultimately determined that the Appellant filed to reopen her claim in January 2002. (See the Board's 2005 remand decision for summarization of this development.) Recent development includes RO determinations in 2008 that new and material evidence was submitted, and the claim was reopened. However, it was determined that the cause of the Veteran's death was not of service origin, and the claim was denied. It is noted that the Appellant's initial claim for service connection for the cause of the Veteran's death was denied by the RO in March 1986, and she was notified that month. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Therefore, although the RO in the current appeal has reviewed the claim on a de novo basis, the issue is as stated on the title page. Moreover, even where the RO reopens a claim and a medical examination is conducted, the Board may still decide not to reopen the claim. In such cases, the adequacy of the examination is moot, though information from the examination is not entirely irrelevant. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Since March 1986, the Appellant submitted a January 2002 private medical opinion showing a possible contributory factor in the Veteran's death. This physician submitted additional statement reiterating his opinion in October 2007. The private doctor opined that the Veteran's death from heart disease was due to his inability to ambulate which was due to his service-connected residuals of a GSW to the thigh. Also added to the record were VA examiner's opinions regarding the Veteran's claims. The VA examination report of 2005 specifically addresses the question of etiology of the Veteran's death. This examiner did not agree with the private physician's opinion that the Veteran's death was caused by his inability to walk due to service-connected disability. Both of these opinions are new in that they were not previously before agency decision makers. Also, the opinions are material, as they relate to facts necessary to substantiate the claim, that is, whether the Veteran's service- connected disability caused or contributed to his death. Presuming the credibility of the private physician's opinion, it raises a reasonable possibility of substantiating the claim. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). New and material evidence has been submitted to reopen the claim, and to this extent the appeal is allowed. However, prior to consideration of the claim on the merits, additional development is necessary. Thus, for reasons explained in the REMAND below, this claim will be remanded. Entitlement to Service Connection for the Cause of the Veteran's Death as Secondary to Nicotine Dependence and Inservice Tobacco Use Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2008). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also 38 C.F.R. § 3.303(d) (2008). A determination of direct service connection requires (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Service connection is prohibited for disability or death on the basis that the disability or death resulted from disease or injury attributable to the use of tobacco products during a Veteran's active service for claims filed after June 9, 1998. 38 U.S.C.A. § 1103(a) (West 2002 & Supp. 2008); see also 38 C.F.R. § 3.300(a) (2008). The law states: Notwithstanding any other provision of law, a Veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103(a) (2008). This prohibition applies only to claims filed after June 9, 1998. Because it has been determined that the Veteran's claim was received prior to this date in May 1998, the statute does not apply in his case, and prior opinions of VA's General Counsel permitting service connection under certain circumstances due to in-service tobacco use apply. In 1993, VA's General Counsel held that direct service connection of disability may be established if the evidence establishes that injury or disease resulted from tobacco use during active service. VAOPGCPREC 2-93 (Jan. 13, 1993). In addition, the VA General Counsel has found that a determination as to whether service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, and therefore is secondarily service connected pursuant to 38 C.F.R. § 3.310(a), depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits; (2) whether the veteran acquired a dependence on nicotine in service; and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the Veteran. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. VAOPGCPREC 19-97 (May 13, 1997). In a May 5, 1997, VA memorandum to VA's General Counsel, the VA Under Secretary of Health affirmed that nicotine dependence may be considered a disease for VA benefit purposes. The Appellant submitted a claim for disability compensation for nicotine dependency in 1998. In statements of record, it is claimed that the Veteran's cigarette smoking originated during service as such was encouraged by the armed forces in that cigarettes were included in the soldier's rations and sold at commissaries at a reduced price. (See the Appellant's Attorney's statement in support of the claim dated in November 2008). Additional statements of record allege that the record shows that the Veteran had a long history of cigarette smoking which supports the Appellant's contention that the Veteran's smoking of cigarettes resulted in COPD which contributed to his death. Analysis The Veteran's STRs do not mention cigarette smoking or nicotine dependence. No nicotine dependence was noted at his service separation examination. Moreover, heart disease and COPD were not noted during service. The post service records reflect that he had a myocardial infarction many years after service in 1970, and his COPD was first noted in the mid 1980s, near the time of his death. The record reflects that the Veteran filed a claim for service connection for this heart condition, but the claim was denied. Records show that when the Veteran was hospitalized in April 1985 at a VA facility for pneumonia, his heart disease was noted. It was also noted that he had a history of smoking 1 to 2 packs a day and that he had severe COPD. He was again hospitalized in May and September 1985 for a left lung mass and was vascular and heart disease, as well as COPD. Again, his history of smoking was noted. In one May 1985 document, it was noted that he had a history of cigarettes use of "60 pk/yrs." His terminal hospital stay originated in December 1985, and as already noted, he died n January [redacted], 1986, due to congestive heart failure, due to ischemic cardiomyopathy, with COPD contributing to death. In a VA examiner's June 2005 report, it was noted in addition to the Veteran's fatal heart disease, he had significant risk factors, to include his smoking. After considering all of the evidence of record, the Board finds that the evidence is not sufficient to provide a basis to allow the claim. The Board notes that there is no contemporaneous evidence from the time of service which reflects the Veteran's level of smoking at that time. In fact, the STRs do not even document that he was a smoker at that time. The Appellant has provided a smoking history that dates such to his military service. However, the actual notations in the claims file as to his smoking only show that he had a long history of such and that he smoked heavily as indicated by the references to 60 pack years and 1 to 2 packs per day. These notations do not actually reflect exactly when the Veteran started smoking, to include as to whether he did so prior to service. Moreover, there are no medical opinions of record finding that nicotine dependence began during service. The Board notes that there is no further need for examination to determine if the Veteran developed nicotine dependence during service because any opinions finding such can be based only on subjective history provided by the Appellant. In the absence of contemporary medical evidence, the actual date of the start of any nicotine dependence remains mere conjecture. In summary, the STRs do not refer to any smoking problems or addiction, and the only medical evidence regarding the development of a claimed nicotine dependence during service was prepared many years after service based on a subjective history provided by the Appellant and the few notations of record regarding his smoking history. Without more, any attempt to place the start of any nicotine dependence now, many years later, would amount to mere conjecture. The evidence does not demonstrate that the Veteran suffered from a nicotine dependence that was first incurred or aggravated by his active service. As the preponderance of the evidence is against this claim, the "benefit-of-the-doubt" rule does not apply, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2008); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim of entitlement to DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151, is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran's death is reopened; to this extent only, the appeal is granted. Entitlement to service connection for the cause of the Veteran's death as secondary to nicotine dependence and inservice tobacco use is denied. REMAND A determination has been made that additional development is necessary in the current appeal as to the claims of entitlement to DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151 and for entitlement to service connection for the cause of the Veteran's death. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. Initially, it is noted that the claims of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 and entitlement to Dependents' Educational Assistance under 38 U.S.C.A. § Chapter 35 based on a grant of service connection for the cause of the Veteran's death are intertwined with the claims being remanded. This is true because resolution of the claims that are the subject of this REMAND could have an effect on the outcome of the claim for DIC and DEA benefits. As a remand is necessary for further development and adjudication, the DIC and DEA claims will be held in abeyance pending completion of the development discussed below. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran died in January 1986. The death certificate shows the immediate cause of death as congestive heart failure due to or as a consequence of ischemic cardiomyopathy. COPD is listed as a significant condition contributing to death, but not related to the cause. The Appellant contends that the Veteran died as a result of his service-connected disabilities in that his inability to ambulate contributed to his death. In support of this contention, a private physician has submitted two reports (dated in 2002 and 2007) in which he argues in support of such. Specifically, he argues that the Veteran's service- connected leg wound (and his vertigo) made it impossible for the Veteran to walk, drive, or exercise since the 1960s, and that this directly contributed to the Veteran's 1970 myocardial infarction and ultimate death by heart disease. A VA examiner disagreed with the private physician's assessment in a 2005 opinion. The private examiner argued again in support of his contention in 2007 stating that the VA examiner was incorrect. He pointed to his many qualifications in forming his opinion, and also noted that he reviewed the entire record. Similarly, as to the claim of entitlement to DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151, the private physician argued that the Veteran's death, in the alternative, was caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in providing care to the Veteran during his terminal illness. Specifically, he argued that the Veteran received toxic levels of Theophylline during his terminal hospital stay. Clearly, the record contains conflicting opinions as to the cause of the Veteran's death. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(c)(4) (2008). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Unfortunately, the Board finds that it must once again remand the Appellant's claims for entitlement to service connection for the cause of the Veteran's death, and for entitlement to DIC benefits for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151, for additional development action. Accordingly, these claims are REMANDED for the following actions: 1. The AMC/RO should arrange for the Veteran's claims folder to be reviewed by an examiner for the purpose of preparing an opinion letter that addresses whether the Veteran's cause of death is related to or a result of his service- i.e., is it at least as likely as not (a probability of 50 percent or higher), that the Veteran's cause of death is etiologically related to service, to include as due to his GSW residuals of the left thigh. The examiner should specifically comment on the contradictory opinions of record as provided by C.N.B.,M.D., and the VA examiner in 2005. 2. The AMC/RO should also arrange for the Veteran's claims folder to be reviewed by an examiner for the purpose of preparing an opinion letter that addresses the relationship between VA care received in late 1985 and the Veteran's death in January 1986. The examiner should specifically comment on the contradictory opinions of record as provided by C.N.B.,M.D., and the VA examiner in 2004. The Board poses the following specific question to the reviewing physician: Was the Veteran's death caused by hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility between December 1985 and the veteran's death in January 1986 and was the proximate cause of the death due to (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing such care, treatment, or examination; or (2) an event not reasonably foreseeable? The reviewing physician is advised that the "proximate cause" is the action or event that directly caused the death, as distinguished from a remote contributing cause. The reviewing physician is also advised that "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" may be shown by evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is specifically requested to address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in the following incidents, and if so, whether such care or lack of care was a proximate cause of the Veteran's death: It is imperative that the examiner(s) review the evidence in the claims folder and acknowledges such review in the opinion letter. If the examiner(s) is unable to provide the requested information with any degree of medical certainty, he or she should clearly indicate such a finding. The examiner(s) should set forth the complete rationale for all opinions expressed and conclusions reached, in a typewritten report. 3. To help avoid future remand, the AMC/RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completion of the above development, the remaining issues on appeal should be readjudicated. The AMC/RO must consider all opinions of record, private and VA in conjunction with the Appellant's claims. If the determination of the benefit sought on appeal remains adverse to the Appellant, she and her attorney representative should be furnished with a Supplemental Statement of the Case (SSOC) and given an opportunity to respond. 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. 2008). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs