Citation Nr: 1015261 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 07-17 141 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1946 to March 1947. The Veteran died in February 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the RO in Muskogee, Oklahoma, which denied service connection for the cause of the Veteran's death. In March 2010, the appellant testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the file. 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 The appellant claims entitlement to service connection for the cause of the Veteran's death. The Board finds that further action is required on this claim before it can be properly adjudicated. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice should generally be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, VCAA notice 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Here, the appellant was sent a March 2006 letter that satisfied the second notice element of Hupp but did not provide a statement of the conditions for which the Veteran was service connected at the time of his death or an explanation of the evidence required to substantiate a claim based on a condition not yet service connected. Thus, the March 2006 letter did not satisfy the first and third notice elements under Hupp. Therefore, this claim must be remanded in order to provide the appellant with a letter complying with the notice requirements set forth in Hupp and all other notice requirements under the VCAA. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability, and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Veteran's February 2006 Certificate of Death reflects that the immediate cause of death was pulmonary fibrosis. During the Veteran's life, service connection had been established for major depression, peripheral neuropathy of the right and left lower extremities, frostbite of the right and left hand, and frostbite of the right and left foot. A March 2006 letter from a private physician, Dr. W.I., states that the Veteran's medical records indicate that his service-connected conditions aggravated his pulmonary fibrosis at the time of his death. The letter further states that based upon the nature of frostbite residuals, which prevent adequate circulation of nerve and blood flow to the body, as well as the Veteran's mental health status and comorbid neuropathies, it is at least as likely as not that the Veteran's service connected conditions contributed to his death. It is unclear what records Dr. W.I. reviewed prior to arriving at his conclusion. Nevertheless, this letter constitutes competent evidence that the cause of death may be associated with service or a service-connected disability. The RO also obtained a June 2006 VA opinion stating that the Veteran's service-connected disabilities did not contribute to his death and were unrelated to pulmonary fibrosis. Although the examiner indicated that the claims file was reviewed, he did not provide a rationale for his opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and is not entitled to any weight if it contains only data and conclusions). The Board finds that both opinions are insufficient for the purpose of making a decision on this claim. On remand, an opinion should be provided which is supported by a thorough rationale for the conclusions reached. In rendering this opinion, the VA physician should consider, among the rest of the evidence in the claims file, an April 2001 VA examination assessing the Veteran's frostbite injuries, a March 2002 letter from Dr. R. describing the severity of the Veteran's service-connected disabilities, the hospice records, the March 2006 letter from Dr. W.I. and the June 2006 VA opinion. Accordingly, the case is REMANDED for the following actions: 1. The agency of original jurisdiction (AOJ) should provide the appellant all notification required by the VCAA with respect to this claim. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. Pursuant to Hupp, the notice must include (1) a statement of the conditions the Veteran was service-connected for 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. 2. The AOJ should obtain a medical opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's major depression, peripheral neuropathy of the right and left lower extremities, frostbite of the right and left hand, and frostbite of the right and left foot caused or contributed substantially or materially to his death or the pulmonary fibrosis from which he died according to the Certificate of Death, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). The entire claims file and a copy of this REMAND must be made available to the examiner. The examiner must note in the opinion that the evidence in the claims file has been reviewed. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner is not able to provide an opinion without resorting to speculation, the examiner must state the reasons why such an opinion cannot be rendered. In this regard, the examiner should state whether a definitive opinion cannot be provided because required information is missing or because current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The examiner should be as specific as possible. 3. After the above development is completed as well as any other development that may be warranted, the AOJ should readjudicate the claim on the merits. If the benefits sought are not granted, the appellant and her representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2009). _________________________________________________ K. PARAKKAL 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).