Citation Nr: 1030876 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 04-23 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for heart disease, lung disorder and diabetes mellitus, for accrued benefits purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from October 1957 to June 1976. The Veteran died on January [redacted], 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant testified before the undersigned at a hearing in September 2006. A transcript of the hearing is of record. 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 In an April 2008 Board decision, the appellant's claim of service connection for the cause of the Veteran's death was remanded, while the claim of service connection for heart disease, lung disorder and diabetes mellitus for accrued benefits purposes was denied. The appellant thereafter appealed the Board's denial of service connection for heart disease, lung disorder and diabetes mellitus for accrued benefits purposes to the United States Court of Appeals for Veterans Claims (Court). In a March 2010 decision, the Court vacated the Board's decision on the accrued benefits claim and remanded the case for further proceedings consistent with the decision. The Court found that VA's decision on the accrued benefits claim in a supplemental statement of the case (SSOC) did not comply with 38 C.F.R. § 19.31. As noted by both parties and the Court, the September 2003 rating decision on appeal did not specifically mention the accrued benefits claim, although the cover letter stated that the appellant's claim for accrued benefits had been denied. Instead, the announcement of VA's decision on the accrued benefits claim was provided in an SSOC. Accordingly, the Court determined that a remand was necessary for the appellant's claim to be properly adjudicated. The problem here is essentially a due process violation. Every claimant has a right to proper notice concerning a decision on his/her claim, to include the reasons for the decision. 38 C.F.R. § 3.103. In this case, the rating decision on appeal contained no discussion of the appellant's accrued benefits claim, and the notice letter simply stating the claim was denied does not meet VA's due process requirements. Based on the Court's memorandum decision discussed above, it appears that "proper adjudication" of the accrued benefits claim means a rating decision must be issued. The Board notes at this juncture that if the accrued benefits claim was never properly adjudicated, according to the Court, it necessarily follows that it was also never properly appealed to the Board. Therefore, to accord the appellant every possible due process consideration, this Remand instructs the RO to issue a rating decision and it then remains the appellant's responsibility to perfect an appeal if she wishes future consideration of this issue by the Board. With regards to the Board's prior remand of the issue of service connection for the cause of the Veteran's death, the Appeals Management Center (AMC) was instructed to provide the appellant with Veterans Claims Assistance Act of 2000 (VCAA) notification that was compliant with Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp¸ the Court held that a notice with regard to a claim for DIC benefits must include (1) a statement of the conditions (if any) for which the 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 disability and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. As noted in the April 2008 remand, none of the VCAA notifications provided to the appellant notified her of the disabilities for which the Veteran was service-connected or of the evidence required to support a claim for benefits based on a nonservice- connected disorder. The AMC sent an updated VCAA notice in May 2008. However, this notice also failed to notify the appellant of the disabilities for which the Veteran was service-connected at the time of his death. The Court has held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court also held that the Board errs in failing to ensure compliance with remand orders of the Board or the Court. Id. Therefore, another remand is now required. 38 C.F.R. § 19.9 (2009). Moreover, the Board also observes that the Veteran's death certificate dated in January 2003 shows that the immediate cause of death was ventricular fibrillation due to coronary artery disease. Other significant conditions contributing to death but not resulting in the underlying cause included COPD and diabetes mellitus. In this case, should service connection for accrued benefits purposes be granted for heart disease, lung disorder, or diabetes mellitus, such grant may affect the decision on the issue of service connection for the cause of the Veteran's death. Therefore, since the issue of service connection for heart disease, lung disorder and diabetes mellitus for accrued benefits purposes is being remanded, the Board finds that the issue of service connection for the cause of the Veteran's death must also be remanded as the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The AMC should send the appellant a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and the Court's decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter 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 the DIC claim based on the Veteran's previously service-connected conditions, and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. 2. Adjudicate the claim for service connection for heart disease, lung disorder and diabetes mellitus for accrued benefits purposes by issuing a rating decision as to that issue. The claim should be adjudicated in accordance with all pertinent laws and regulations, to include providing the appellant notice of her right to appeal any adverse determination. If the appellant properly files a notice of disagreement as to the RO's decision on the accrued benefits claim, then the RO should provide her a statement of the case, along with a VA Form 9, so that she can perfect her appeal of this issue if she desires appellate review. 3. Following adjudication of the accrued benefits claim, readjudicate the issue of service connection for the cause of the Veteran's death. If the issue of service connection for the cause of death is not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). No action is required of the appellant until further notice. The appellant is reminded that if she disagrees with the rating decision on the accrued benefits claim, she must take the necessary steps to appeal that decision, including the filing of a timely notice of disagreement. 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). _________________________________________________ MICHELLE L. KANE 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).