Citation Nr: 1127838 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 10-38 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran had active service from June 1941 to October 1945. He died in late- 1981. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death. 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 Unfortunately, a remand for additional development is necessary in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). Specifically, the Board finds that a remand is necessary in order to determine whether the cause of the Veteran's death was the result of his active service or due to a service-connected disability. See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). By way of history, while in service, in August 1944, the Veteran underwent surgery to remove his right testicle due to the presence of a tumor. A March 1946 post-service VA examination report shows that the Veteran had also undergone X-ray therapy of the lower part of the abdomen and lumbosacral region. He had residual vague pains in the right groin and lumbar region, particularly after lifting heavy weights or bending forward. There was no sign of recurrence of the tumor. The entire spermatic cord had been removed. The Veteran was awarded service connection for a scar due to post-operative residuals of removal of carcinoma of the right testes. An April 1949 VA examination report shows that the Veteran was sterile due to the previous radiation therapy. It was found that there was no indication of any psychiatric disorder related to his sterility. In January 1957, the Veteran was awarded special monthly compensation for the loss of use of a creative organ. An April 1970 statement of treatment reflects that a January 1949 X-ray of the kidneys, ureters, and bladder appeared normal. In June 1977, the Veteran's physician submitted a statement that the Veteran was under treatment for hypertension, arteriosclerotic heart disease, coronary artery disease with myocardial damage, absent right kidney function, arteriosclerosis obliterans, severe, with involvement of both leg vessels and both iliac vessels in the lower aorta, and diabetes mellitus. The physician felt that the absent right kidney function was subsequent to X-ray therapy for right testes carcinoma. His diabetes was diagnosed in 1967. In September 1977, the same physician stated that it was his opinion that the changes in the Veteran's right kidney, related to his in-service X-ray therapy, were a factor in the subsequent development of his hypertension. In April 1979, the same physician stated that the X-ray treatment was also a factor in the Veteran's development of blood vessel problems in his legs and heart. However, the issues of service connection for absent right kidney function and for hypertension were denied during the Veteran's life time and no appeal was perfected pertaining to those issues at the time of his death. The Veteran died on late-1981. His death certificate states the immediate cause of death to be cardiac arrest and ventricular tachycardia as a consequence of acute pulmonary edema and coronary artery thrombosis. Diabetes mellitus was listed as a significant contributing condition. The appellant contends that the in-service removal of the Veteran's right testes and subsequent radiation therapy caused or contributed to his terminal illness. She also contends that the Veteran's inability to procreate caused him to feel lifelong stress that also contributed to his terminal illnesses. To date, a VA examiner has not offered an opinion as to whether the Veteran's service-connected residuals for removal of the right testes and loss of use of creative organ caused or contributed to his death. Therefore, because during his lifetime the Veteran was in receipt of service connection for the residuals of a right testes tumor, and there exists a private opinion relating the treatment for his right testes tumor to medical conditions that existed within a few years of his death, including his hypertension, loss of right kidney, and venous conditions, thus suggesting a possible link between his service-connected disability and his cause of death, an etiological opinion would be pertinent in order to fairly adjudicate the claim. Additionally, it appears that the terminal records surrounding the Veteran's death have not been requested or obtained. Although the Veteran died in 1981, and those records may no longer exist, an attempt to retrieve those records, along with any other pertinent medical records relating to the Veteran's terminal illnesses, should be requested on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet.App. 611. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. In the context of a claim for dependency and indemnity compensation (DIC), which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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, 352- 53 (2007). The appellant has not yet been provided notice consistent with Hupp. Therefore, on remand, she should be provided with proper VCAA notice. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall send the appellant a corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes (1) a statement of the condition(s) for which the Veteran was service-connected 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 in accordance with Hupp, supra. 2. The RO/AMC shall request that the appellant identify all physicians who treated the Veteran at the time of his death, to include those who treated him for his terminal illnesses. After securing any necessary authorization from her, obtain copies of any records the appellant identifies, to include those from the Medical Center Hospital located in Punta Gorda, Florida, in December 1981. All requests and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been expended, the appellant should be notified and allowed an opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c) &(e). 3. The RO/AMC shall then arrange for a VA physician to review the Veteran's file and determine whether there is any relationship between the cause of the Veteran's death and his period of active service, or his service-connected disability. A review of the entire claims file and a copy of this Remand must be conducted by the examiner in conjunction with formulating the requested opinion. The examiner is directed to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's death was etiologically related to or aggravated by his period of active service or to a service-connected disability. Specifically, the examiner should address whether the cause of the Veteran's death is related to the in-service removal of the right testes, the X-ray therapy used to treat the right testes tumor, and the subsequent loss of use of the left testes, taking into consideration the June 1977, September 1977, and April 1979 private opinions. The examiner should also comment on the contention that the Veteran's inability procreate caused him to experience stress that lead to his terminal illnesses. A complete rationale for all opinions expressed must be provided. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. The RO/AMC will then readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The appellant need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims that 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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).