Citation Nr: 1312672 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-35 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1974. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO, among other things, denied entitlement to service connection for the cause of the Veteran's death. The appellant testified before the undersigned at a February 2013 videoconference hearing at the RO. A transcript of the hearing has been associated with the claims folder. The appellant was previously represented by Disabled American Veterans, as shown in a signed and completed VA Form 21-22 dated in November 2007. However, she subsequently expressed her intent to represent herself. Hence, the appellant is now unrepresented. 38 C.F.R. § 20.608(a) (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The documents in this file have been reviewed and considered as part of this appeal. 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 VA is obliged to obtain a medical opinion in a cause of death claim when necessary to assist a claimant in substantiating the claim. 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The Veteran died in September 2007. His death certificate lists the immediate cause of his death as a ruptured anterior communicating artery aneurysm, due to or as a consequence of tobacco dependence. There are no other conditions listed as contributing to the Veteran's death. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD). The appellant contends that the Veteran's PTSD contributed to his death in that it caused fatal hypertension and cardiac problems and/or resulted in the use of tobacco, which in turn caused his fatal aneurysm. With respect to tobacco use, VA issued a regulation in April 2001 which reflected the statutory provision noting that a death will not be service connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2012). However, in a 2003 opinion, VA's General Counsel held that neither 38 U.S.C.A. § 1103(a) nor 38 C.F.R. § 3.300 bars a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran's use of tobacco products during service. See VAOGCPREC 6-2003. Further, VA's General Counsel has held that adjudicators must resolve: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. VAOGCPREC 6-2003. Medical records reflect that the Veteran had been diagnosed as having hypertension and various cardiac disabilities, including coronary artery disease, myocardial infarctions, and congestive heart failure. Also, he had a long history of tobacco use. For example, an August 2002 VA podiatry clinic treatment note reveals that he smoked approximately 3 cigarettes per day and that he had a 28 year history of tobacco use (approximately half a pack per day). The appellant has submitted references to medical literature which indicate possible relationships between PTSD and cardiac disabilities and tobacco use. In light of the above evidence, a medical opinion is necessary to determine if the cause of the Veteran's death was related to his service-connected PTSD. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the claims file, including a January 2007 VA examination report, indicates that the Veteran had been in receipt of Social Security Administration (SSA) disability benefits for a psychiatric disability, among other things. The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file. As the Veteran was reportedly in receipt of SSA disability benefits for a psychiatric disability and the appellant contends that the Veteran's service-connected PTSD contributed to his death, any available SSA disability records are directly relevant to the issue of entitlement to service connection for the cause of the Veteran's death. Also, VA treatment records and the Veteran's September 2007 death certificate reveal that he died at Kaiser Foundation Hospital in Sacramento, California. The appellant has reported that the Veteran was admitted to that facility in August 2007 for his fatal aneurysm. Her reports and VA treatment records also reflect that the Veteran had received psychiatric treatment at the following private facilities: Heritage Hospital; New Bridge Foundation; Alameda County John George Psychiatric Hospital; Fremont Hospital; Gladman's Hospital; and Cronin House. When VA becomes aware of private treatment records it will specifically ask the appellant to provide a release to obtain the records. If the appellant does not provide the release, VA must ask the appellant to obtain the records. 38 C.F.R. § 3.159(e)(2). Although there are some treatment records from Kaiser Hospital in the claims file, they do not include records pertaining to treatment for the Veteran's fatal aneurysm beginning in August 2007. Also, the above steps have not yet been taken with regard to the other identified private treatment records. As such records reportedly pertain to treatment for the Veteran's psychiatric disability and fatal aneurysm and the appellant has contended that the Veteran's service-connected PTSD contributed to his death, any such records are directly relevant to the service connection issue on appeal. Thus, a remand is also necessary to attempt to obtain any of the identified relevant private treatment records. Additionally, in the context of a claim for service connection for the cause of a 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 claim of service connection for the cause of a veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim of service connection for the cause of a veteran's death based on a condition not yet service connected. An original claim for service connection for the cause of a veteran's death imposes upon VA no obligation to inform a claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007); cf. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that the VCAA does not require notice tailored to each specific claim). In this case, a November 2007 VCAA notice letter received by the appellant did not contain all of the information required by the decision in Hupp (i.e. that the Veteran was service connected for PTSD at the time of his death and an explanation of the evidence and information required to substantiate a claim of service connection for the cause of a veteran's death based on a condition not yet service connected). Also, the appellant has not been provided specific notice of the information and evidence that is necessary to substantiate a claim of service connection on a secondary basis in accordance with the VCAA. Cf. 38 U.S.C.A. § 5103(a). Inasmuch as the appeal is being remanded for other reasons, there is an opportunity to provide notice that fully complies with the decision in Hupp and which includes information as to secondary service connection. Furthermore, in the April 2008 decision, the RO denied entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. In her May 2008 notice of disagreement, the appellant made reference to this determination. A statement of the case has not been issued with respect to this issue. 38 U.S.C.A. § 7105(a) (West 2002). The Board is required to remand this claim for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The appellant shall be provided a VCAA notice letter that tells her what disability was service connected at the time of the Veteran's death (i.e. PTSD) and provides her with notice as to the information and evidence that is required to substantiate a claim of service connection for the cause of a veteran's death based on a condition not yet service connected and a claim of service connection on a secondary basis. A copy of this letter must be included in the claims file. 2. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. These efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. The appellant shall be asked to complete authorizations for VA to obtain all records of the Veteran's treatment for hypertension, a psychiatric disability, a cardiac disability, and an anterior communicating artery aneurysm from the following facilities: Kaiser Foundation Hospital in Sacramento, California; Heritage Hospital; New Bridge Foundation; Alameda County John George Psychiatric Hospital; Fremont Hospital; Gladman's Hospital; and Cronin House. All efforts to obtain these records must be documented in the claims file. If the appellant fails to furnish any necessary releases for private treatment records, she shall be advised to obtain the records and submit them to VA. If any records are unavailable, the appellant shall be notified of the identity of the putative records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claim. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any evidence from the SSA, the claims file, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, shall be referred to a VA physician with appropriate expertise to review and provide an opinion as to the etiology of the Veteran's cause of death. The opinion provider shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's fatal aneurysm had its clinical onset in service or in the year immediately following service, or was otherwise related to a disease or injury in service? (b) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD contributed significantly or materially to cause his death (e.g. hastened death or rendered him less capable of resisting the conditions that caused death)? (c) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD caused him to use tobacco products? In formulating the above opinions, the opinion provider shall specifically acknowledge and comment on the Veteran's reported smoking history and his post-service hypertension and psychiatric and cardiac problems. The opinion provider must provide reasons for each opinion given. 5. The RO should readjudicate the issues of entitlement to service connection for the cause of the Veteran's death and Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. If the claims remain denied, the RO is directed to promulgate a statement of the case on these issues and to provide the appellant with the appropriate notice of appellate rights. If the claims are not resolved to the appellant's satisfaction, he should be provided with a statement of the case and an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, the Veteran must file a timely substantive appeal with regard to the claim for Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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).