Citation Nr: 1306115 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-12 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Scott W. Sexton, Attorney WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to October 1961 and from April 1963 to October 1984. The Veteran died in September 2007, and the Veteran's widow is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for cause of the Veteran's death. In April 2010, the Veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. In June 2010, August 2011, and March 2012, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 Although the Board sincerely regrets the additional delay that inevitably will result from this remand, it is necessary to ensure there is a complete record upon which to decide the appellant's claim so she is afforded every possible consideration. The appellant claims that the Veteran's death from chronic obstructive pulmonary disease (COPD) and pulmonary hypertension was the result of his exposure to herbicides and other toxic chemicals during his military service. At the April 2010 Board hearing, the appellant explained that while serving as a combat engineer and construction mechanic during service, he was exposed to Agent Orange and different chemicals, to include sulfur mustard, Lewisite, and nitrogen mustard, while stationed at Rocky Mountain Arsenal, Colorado. She asserts that it was during this time the Veteran developed COPD and pulmonary hypertension, which caused his untimely demise. The Veteran died in September 2007. The death certificate shows that the immediate cause of death was COPD. Pulmonary hypertension was listed as a disorder that led to the immediate cause of death. At the time of his death, the Veteran was service-connected for amputation of the left ring finger, evaluated as 10 percent disabling; and head injury with lacerations over the right eye and back of the head, evaluated as 0 percent disabling. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by his active military service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). A review of the record shows that the Veteran suffered from COPD prior to his death. A VA outpatient treatment record dated August 2005 specifically noted that the Veteran smoked two to three packs per day up until he quit, which was in June 2005. Additionally, the Veteran's service personnel records show that he served at the Rocky Mountain Arsenal from May 1963 to April 1966 as a construction machine operator. As previously mentioned, the appellant asserts that the Veteran was exposed to chemicals while stationed at Rocky Mountain and also submitted an article noting the chemicals onsite at Rocky Mountain during the Veteran's military time. In light of the appellant's contentions and the submitted article, the RO should obtain a VA opinion regarding whether the cause of Veteran's death is related to service or any service-connected disability. See 38 U.S.C.A. § 5103A (West Supp. 2012); 38 C.F.R. § 3.159(c) (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the United States Court of Appeals for Veterans Claims (Court/CAVC) held in Hupp v. Nicholson, 21 Vet. App. 342 (2007), that, in the context of a claim for DIC benefits - so including for cause of death, the Veterans Claims Assistance Act (VCAA) notice requirements of 38 U.S.C.A. § 5103(a) mandate that VA provide the appellant: (1) a statement of the conditions, if any, 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 a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. Here, although there is a November 2007 letter in file generally explaining what the evidence must show to establish a claim for DIC, the letter does not also mention the conditions for which the Veteran was service connected at the time of his death. The Board realizes the appellant has not made specific arguments regarding the service-connected disabilities, but she nevertheless must be informed of this information to ensure she has received the required notice. Thus, sufficient Hupp notice must be sent to her. 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) (2012). Expedited handling is requested.) 1. Send the appellant a VCAA notice letter in compliance with the Court's decisions in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). 2. Next, the RO should refer the appellant's claim to a VA physician to render the appropriate medical opinion. The claims file must be furnished to the VA examiner in conjunction with the opinion. The VA examiner should indicate that the claims file was reviewed. Then, the VA examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that (1) the cause of the Veteran's death was etiologically related to his period of active service, to include chemical exposure while stationed at Rocky Mountain Arsenal, Colorado, or (2) a service-connected disability contributed substantially or materially to cause the Veteran's death. The examiner should also opine on whether it is more likely his terminal COPD is the result of a history of smoking two to three cigarettes per day prior to his death. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the appellant and her attorney should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The appellant need take no action unless otherwise notified. 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. 2012). _________________________________________________ ROBERT E. O'BRIEN 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) (2012).