Citation Nr: 1014243 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 04-13 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: James G. Fausone, Attorney At Law ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1966. The Veteran died in December 1998. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. This case was most recently before the Board in June 2009. A June 26, 2009 Board decision denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant thereafter appealed that decision to the United States Court of Appeals for Veterans Claims (Court) which, upon a December 2009 Joint Motion For Remand (that moved the Court to vacate the Board's June 26, 2009 decision), promulgated an Order on December 16, 2009 that granted the motion of the parties. The granting of the motion had the effect of vacating the Board's June 26, 2009 decision that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The appellant asserts that the Veteran's service-connected diabetes mellitus caused or substantially contributed to his death. Private opinions (Dr. C.N.B., March 2007 and Dr. L.G., October 2003) have been submitted in support of the appellant's claim. In commenting on previous VA examinations dated in June 2006 and January 2009, the December 2009 Joint Motion noted (page 3), in pertinent part, as follows: The parties agree that this matter should be remanded for the Board to order a new VA medical opinion that includes a full review of the medical evidence of record, including the Veteran's reported glucose results, and a discussion of the relevant medical evidence. In discussing the specific reason as to why the previous VA examinations dated in June 2006 and January 2009 were deficient, the December 2009 Joint Motion specifically noted (page 2) the following: The following lab results reported other [meaning other than a December 1998 glucose reading of 245 mg/dl] glucose readings that were not addressed in either VA medical opinion: 239 mg/dl (November 6, 1998); 141 mg/dl (May 5, 1998); 128 mg/dl (December 5, 1997) and 131 mg/dl (March 19, 1997). . . . Additionally, a July 9, 1996 inpatient progress note reported Appellant's blood sugar as 251 mg/dl. The Board notes that subsequent to the Board's June 2009 decision the appellant obtained new representation. Further, in specific consideration of the claim of service connection for the cause of the veteran's death, the Board notes that in the adjudication of a DIC claim under 38 U.S.C.A. § 1310 (West 2002), when a veteran had service-connected disability during his lifetime, VCAA notice must include a statement of the conditions for which a veteran was service connected at the time of his or her death. Hupp v. Nicholson, 21 Vet. App. 342, 352-3 (2007). As an August 2008 RO decision established (posthumously) service connection for diabetes mellitus, and as the appellant has obtained new representation, a new VCAA notice letter conforming to the requirements set forth in Hupp must be issued. Accordingly, the case is hereby REMANDED for the following actions: 1. Issue a VCAA notice pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information or evidence needed to substantiate the claim for entitlement to service connection for the cause of the Veteran's death as outlined by the Court in Hupp v. Nicholson, 21 Vet. App. 342 (2007). Specifically, the appellant should be informed of the condition for which the Veteran was service-connected at the time of his death, an explanation of the evidence and information required to substantiate a DIC claim based on the previously service-connected condition, and an explanation of the evidence and information required to substantiate a DIC claim based on any condition not yet service-connected. 2. Upon completion of the above, forward the claims folder to the appropriate VA specialist (who has not previously offered an opinion in this matter) to review the claims folder and reconcile the October 2003 and March 2007 private examiner opinions with the June 2006 and January 2009 VA opinions. After reviewing the Veteran's claims folder, the VA examiner should also furnish an opinion as to whether it is at least as likely as not that diabetes mellitus contributed substantially or materially to the Veteran's death, or combined to cause death, or aided or lent assistance to the production of his death. In rendering such opinion, the VA examiner must explicitly address Dr. C.N.B.'s March 2007 opinion, as well as the earlier October 2003 statement written by Dr. L.G. Additionally, the examiner must specifically note and comment upon, as appropriate, the glucose readings of 251 mg/dl (July 9, 1996), 131 mg/dl (March 19, 1997), 128 mg/dl (December 5, 1997), 141 mg/dl (May 5, 1998), 239 mg/dl (November 6, 1998), and 245 mg/dl (December 1998) as noted in the December 2009 Joint Motion of the parties. All opinions should be accompanied by a clear and detailed rationale consistent with the evidence of record. The examination report should clearly indicate that a review of the claims file was performed in conjunction with this inquiry. 3. The AOJ should then readjudicate the issue of entitlement to service connection for the cause of the Veteran's death. If the benefit sought is not granted to the appellant's satisfaction, a supplemental statement of the case should be issued, and the appellant and her representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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. 2005). _________________________________________________ U.R. POWELL 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) (2009).