Citation Nr: 1111488 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 09-18 894A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to October 1963. He died in January 2008. The appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was previously remanded by the Board in December 2010 for further development which was to include: providing the appellant with notice consistent with Hupp v. Nicholson, 21 Vet. App. 342 (2007); providing other notification and performing other development as deemed necessary by the RO; and readjudicating the appellant's claim. For the reasons discussed fully below, the Board finds that the above action has not been adequately performed. Hence, further remand is necessary on that ground, as well as on other grounds that are discussed fully below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 2009 VA Form 21-4138, the appellant notified VA of a new address. Research by the Board has revealed that since that time, the appellant has relocated again. Documentation of the appellant's current address has been associated with the claims file. Despite the above, a review of the claims file shows that all VA correspondence since April 2009 has been mailed to her address, as it was listed before her April 2009 VA Form 21-4138. Such correspondence includes an August 2010 letter notifying the appellant of her requested Travel Board hearing, the Board's prior December 2010 remand, as well as the VA's subsequent December 2010 notice letter and February 2011 Supplemental Statement of the Case (SSOC), which were mailed in an effort to comply with the Board's remand. Interestingly, the Board observes that although the December 2010 remand was returned by the United States Postal Service undelivered, no other correspondence mailed to the appellant since April 2009 has been returned by the postal service. Nonetheless, there is no documentation in the claims file that the appellant returned to her previous address, as it was listed prior to April 2009. As such, the Board cannot presume that these mailings were received by the appellant. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Given that the appellant cannot be presumed to have received the RO's December 2010 letter or February 2011 SSOC, the Board does not find that its previous remand action has been met with compliance. Under the circumstances, a new letter that is consistent with the requirements outlined in Hupp v. Nicholson, 21 Vet. App. 342 (2007) should be mailed to the appellant at her current address, as documented in the claims file. Copies of all correspondence mailed by VA to the appellant since April 2009 should also be mailed to her new address. Additionally, the Veteran's January 2008 death certificate reveals that the Veteran was being treated at Southern Ocean County Hospital at the time of his death. A review of the claims file, however, does not indicate that records corresponding to that treatment have been obtained and associated with the claims file. The Board also notes that a September 2008 letter from the Veteran's private physician, Dr. S.M. of Quality Medical Associates, opines that injuries incurred by the Veteran during service contributed to cause the Veteran's death. In that letter, Dr. S.M. states that he had been treating the Veteran "for the past few years." Records which correspond to the January 2008 treatment at Southern Ocean County Hospital and from Dr. S.M. are possibly relevant to the issue that is on appeal. Hence, the appellant should be provided a VA 21-4142 release bearing the full names and addresses for Southern Ocean County Hospital and Dr. S.M. and she should be requested to sign and return the release. Thereafter, efforts should be made to obtain the Veteran's treatment records from those facilities. 38 C.F.R. § 3.159(c)(1). The Board observes that a claims file review and VA medical opinion as to the cause of the Veteran's death was obtained in April 2010. In view of the foregoing, it is evident that this opinion was formed without the benefit of review of the treatment records from Southern Ocean County Hospital and Dr. S.M. If VA's efforts to obtain those records are successful, then the claims file should be provided to the same VA physician who authored the April 2010 report. The VA physician should be requested to review again the entire claims file and to provide an addendum report containing a revised opinion as to the cause of the Veteran's death. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. A letter should be sent to the appellant, at her current address as documented in the claims file, explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding her claim for service connection for the cause of the Veteran's death. In particular, this letter must inform the appellant of the conditions for which the Veteran was service-connected at the time of his death, explain the evidence and information that is required to substantiate a DIC claim based on a previously service-connected condition, and explain the evidence and information that is required to substantiate a DIC claim that is based on a condition not yet service-connected, consistent with the Hupp case cited above. The appellant should also be provided a VA Form 21-4142 release, with the names and addresses for Southern Ocean County Hospital and Dr. S.M. The appellant should be requested to sign the release and to return it to the RO. 2. Then, all records corresponding to treatment of the Veteran at Southern Ocean County Hospital and by Dr. S.M. should be obtained. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records yields negative results, documentation to that effect should also be associated with the claims file. 3. After the above remand actions have been performed, and if additional treatment records or other evidence has been obtained, the claims file should be provided to the same VA physician who authored the April 2010 report. The VA physician should be requested to review the entire claims file and to provide an addendum report in which he offers a new opinion as to whether the Veteran's service-connected disabilities or non-service-connected disabilities which are etiologically related to his active duty service are either a principal or a contributory cause of the Veteran's death. In particular, the VA physician should opine whether the additional evidence associated with the claims file since the prior April 2010 report changes the opinions rendered in that report. In the addendum, the VA physician should provide supporting rationale for all findings and opinions, expressed in a typewritten report. 4. After completion of the above development, the appellant's claim of service connection for the cause of the Veteran's death should be readjudicated. If the determination remains adverse to the appellant, she and her representative should be furnished with a Supplemental Statement of the Case and provided 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. 2010). _________________________________________________ MICHAEL MARTIN Acting 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) (2010).