Citation Nr: 1117728 Decision Date: 05/09/11 Archive Date: 05/17/11 DOCKET NO. 10-16 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from December 1942 to January 1946. He died in September 2008; the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction over the case was subsequently transferred to the RO in Columbia, South Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). REMAND The Board is of the opinion that additional development is required before the appellant's appeal is decided. The record reflects that the Veteran died in September 2008; the immediate cause of his death was healthcare acquired pneumonia, due to end-stage dementia. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD). The appellant contends that the medication (Seroquel) that the Veteran was taking for his PTSD caused his pneumonia and ultimately his death. Initially, the Board notes that the appellant received letters pursuant to the Veterans Claims Assistance Act (VCAA) in February 2009 and June 2009. However, review of the record shows that the letters do not contain the specific notification required under 38 U.S.C.A. § 5103, as interpreted by the United States Court of Appeals for Veterans Claims (Court) in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In Hupp, the Court held that in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) 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. This notice deficiency should be addressed on remand. In addition, the Board notes that the claims file does not contain records pertaining to the Veteran's terminal hospitalization. In this regard, the Veteran's death certificate notes that he was hospitalized at Conway Medical Center in Conway, South Carolina at the time of his death. In addition, the appellant reported in a July 2009 statement that the Veteran had been treated at the VA Medical Center in Charleston, South Carolina. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, further development to obtain treatment records is in order on remand. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should send the appellant all required notice with respect to the issue of entitlement to service connection for the cause of the Veteran's death, to specifically include Hupp-compliant notice. 2. The RO or the AMC should undertake appropriate development to obtain a copy of the Veteran's terminal hospitalization records from Conway medical Center (i.e., through September 2008). All records and/or responses received should be associated with the claims file. The RO or the AMC should also undertake appropriate development to obtain all outstanding records of evaluation and/or treatment of the Veteran at the VA Medical Center in Charleston, South Carolina All records and/or responses received should be associated with the claims file. If the appellant identifies any additional outstanding evidence supportive of her claim, the RO or the AMC should undertake appropriate development to obtain that evidence as well. If the RO or the AMC is unable to obtain any medical records identified by the appellant, she should be so informed and requested to provide copies of such records. 3. Thereafter, the RO or the AMC should undertake any additional development it determines to be warranted, to include obtaining an appropriate medical opinion with supporting rationale if required to comply with VA's duty to assist the appellant in the development of the facts pertinent to her claim. 4. Then, the RO or the AMC should adjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case should be furnished to the appellant and she should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. No action is required of the appellant until she is otherwise notified but she has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ Shane A. Durkin 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).