Citation Nr: 1319317 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-25 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Whether new and material evidence has been received sufficient to reopen a claim for service connection for DIC under 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945, and was a prisoner of war of the German Government from December 1944 t0 April 1945. He died in October 1994. The appellant is his widow. 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). This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, in October 2008 and September 2009. The RO found that new and material evidence had not been submitted to reopen the claims for entitlement to service connection for the cause of the Veteran's death and DIC under 38 U.S.C.A. § 1318. The Board remanded these issues in August 2012. The appellant provided testimony before during a hearing before the undersigned at the RO in July 2012. A transcript is of record. Although there is also a paperless Virtual VA file, all pertinent documents are associated with the paper claims file. The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was last finally denied in an October 2005 determination by the RO; the appellant was notified of the determination and her rights to appeal, but she did not appeal and no new and material evidence was received within one year of that determination. 2. Evidence received since the last final denial of service connection for the cause of the Veteran's death includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim, so as to trigger the need for a new VA medical opinion. 3. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 was last finally denied in an October 2005 determination by the RO; the appellant was notified of the determination and her rights to appeal, but she did not appeal and no new and material evidence was received within one year of that determination. 4. Evidence received since the last final denial of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 does not relate to an unestablished element of that claim or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2005 RO denial of service connection for the cause of the Veteran's death became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2012). 2. The October 2005 RO denial of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 became final, and new and material evidence has not been received to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of the information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). With regard to an application to reopen a previously denied claim, the notice must include the general elements of the claim, the standard for new and material evidence to reopen a claim, and the reason for the previous denial on the merits, including the types of evidence that are necessary to substantiate the claim. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). Proper VCAA notice should be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The appellant's most recent attempt to reopen her claims for death benefits was received in May 2008. In light of the Board's favorable decision in reopening the claim of service connection for the cause of the Veteran's death, the claim to reopen is substantiated. Therefore, no further action is necessary to satisfy the VCAA. Concerning entitlement to DIC under 38 U.S.C.A. § 1318, the appellant was advised in an August 2008 letter, prior to the unfavorable rating decision in October 2008, of the general requirements for such benefits, as well as the responsibilities of the appellant and VA in obtaining such evidence. The appellant was also advised of the correct standard for new and material evidence at that time. She was advised of the reasons for the previous denial of service connection for the cause of the Veteran's death, but not of the reasons for denial under 38 U.S.C.A. § 1318. The appellant's September 2012 Travel Board hearing testimony, and discussion of the required evidence and possibly missing evidence by the Veterans Law Judge, also focused on the claim for service connection for the cause of the Veteran's death. Cf. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Nevertheless, there is no prejudice as a result of these possible notice defects. Inasmuch as he was not rated 100 percent disabled for service connected disability or disabilities at any time prior to his death; and there is no allegation of clear and unmistakable error in a pertinent VA decision during his lifetime; the Veteran was not in receipt of or entitled to receive a total rating for the requisite period prior to his death. Hence, there is no legal entitlement to DIC under 38 U.S.C.A. § 1318. The relevant facts are undisputed and the resolution of this claim is entirely dependent upon the application of relevant statutes and regulations. See Kane v. Principi, 17 Vet. App. 97, 103 (2003); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Therefore, no further VCAA notice is required. The Board notes that, as directed in the prior remand, VA requested the appellant to identify and authorize VA to obtain any outstanding records from Dr. H.W. Efforts were made to obtain the records based on the information provided, with no success. Further, the appellant indicated that this provider was at the VA Medical Center (MC) from 1992 to 1994, and VA records were previously obtained for that period. As such, this remand directive was substantially satisfied. In summary, there is no argument or indication that any records pertinent to this claim remain outstanding. No medical opinion is necessary due to the nature of the claim. In the circumstances of this case, a further remand as to this issue would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the appellant will not be prejudiced by a decision on this issue at this time. II. Analysis Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford, 8 Vet. App. at 239-40. However, new and material received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In other words, where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. Therefore, VA must evaluate submissions received and determine whether they contain new evidence relevant to a pending claim. Id.; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade, 24 Vet. App. at 117. VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120. The appellant's initial claims for service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C.A. § 1318 were denied in a September 1998 rating decision. She appealed from these determinations and, in April 2000, the Board denied the claims based on findings that the cause of the Veteran's death was not related to service or to the service-connected disability of urethral stricture, and that he did not have a total disability for the requisite time periods after service or prior to his death. The appellant filed a motion for reconsideration by the Board, which was denied in August 2000. Board decisions are final when issued, unless the Board Chairman orders reconsideration of the decision. Hayslip v. Principi, 364 F.3d 1321, 1326 (2004); 38 C.F.R. § 20.1100 (2012). The Board notes that the appellant contacted her Congressional representative, who requested a status report, which was provided in October 2000. However, this did not constitute a request for reconsideration. As such, the April 2000 Board denial is final. 38 C.F.R. § 20.1100. In September 2004, the appellant applied to reopen her claims for death benefits. The RO denied the claims to reopen in a January 2005 rating decision, and the appellant was notified of her rights to appeal at that time. In May 2005, she requested information as to available benefits as the Veteran's widow, which was interpreted as a claim to reopen the previously denied claims. In an October 2005 rating decision, the RO again denied the application to reopen the claims, and the appellate was notified of her appellate rights. She did not initiate an appeal, and no new and material evidence was received within one year of that determination. Rather, the next communication or evidence was received in May 2008. As such, the January 2005 RO denial of the claims to reopen became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). In May 2008, the appellant's representative requested death benefits on the appellant's behalf. This was interpreted as a claim to reopen the two prior claims, which the RO denied in an October 2008 rating decision. Additional development was conducted, and the RO issued another rating decision denying the claims to reopen in September 2009. The appellant submitted a notice of disagreement to this decision in July 2010. Under these circumstances, the appeal proceeds from her May 2008 application to reopen the previously denied claims, because evidence received within a year of that decision was new and material and the appellant submitted a timely notice of disagreement with the readjudication of the claims. 38 C.F.R. § 3.156(b); see Beraud v. Shinseki, No. 11-726, (Vet. App. May 17, 2013). To warrant DIC based on service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection for the cause of death is generally to be determined on the same basis as service connection for compensation under Chapter 11 of 38 U.S.C. (38 U.S.C.A. § 1100 et. seq.). 38 U.S.C.A. § 1310(a). A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). DIC benefits pursuant to 38 U.S.C.A. § 1318 may be granted to a survivor spouse where the Veteran died of nonservice-connected causes if certain conditions are met. Specifically, the Veteran must not have died as the result of his or her own willful misconduct and, at the time of death, must have been receiving, or entitled to receive, compensation for a service-connected disability that was (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for a period of at least five years immediately preceding death; or (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the Veteran was a former prisoner of war who died after September 30, 1999. The total disability rating may be based on schedular considerations or on unemployability. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. Here, the Veteran was discharged from service in December 1945. In a January 1946 rating decision, he was assigned a 50 percent disability rating based on severe traumatic urethral stricture (or a bladder condition) and colitis. In an April 1948 rating decision, the ratings were separated and reduced effective as of April 5, 1948, to 10 percent for mild traumatic urethral stricture, 10 percent for residuals of colitis, and 0 percent for healed multiple fractures of the right pelvis, with a combined rating of 20 percent. In an October 1963 rating decision, the evaluation for colitis (history of) was reduced to 0 percent effective in July 1963. These disabilities were all based on an October 1943 injury in service where a jeep rolled over the Veteran. In rating decisions dated in May 1991 and June 1991, the Veteran was granted service connection for additional disabilities due to his POW injuries effective in January 1991. Specifically, he was rated as 40 percent disabled for traumatic arthritis of the lumbar spine, 10 percent disabled for traumatic arthritis of the thoracic spine, and 10 percent disabled for anxiety neurosis. The Veteran subsequently sought service connection for hearing loss and tinnitus, as well as higher ratings for colitis and for a bladder or urethra condition, including bladder cancer. However, those claims were all denied. See July 1991 rating decision, October 1992 statement of the case, August 1994 and October 1994 rating decisions. The Veteran died in October 1994 with a principal cause of death of metastatic cancer of the bladder, due to or a consequence of small bowel obstruction. See certificate of death. As such, at the time of his death, the Veteran was service-connected for traumatic injury of the bladder and urethra with stricture, residuals or history of colitis, healed multiple fractures of the right pelvis, and traumatic arthritis of the lumbar and thoracic spine. His combined ratings were 50 percent effective from December 20, 1945; 20 percent effective from April 4, 1948; 10 percent effective from July 10, 1963, forward; and 60 percent effective from January 15, 1991, forward. With regard to the appellant's claims to reopen, much of the information and evidence received since the last denial of the claims in 2005 is duplicative or redundant. In particular, there are copies of VA and private treatment records and statements by the appellant and the Veteran that were previously considered. However, during the July 2012 hearing, the appellant provided additional information concerning the nature and timing of the Veteran's symptoms from the time of their marriage in 1975 through his death in 1994. The Board finds that, when considered together with the prior evidence of record, the appellant's hearing testimony points to an indication that the Veteran's cause of death (bladder cancer) may be related to his in-service injury. As such, VA's duty to assist has been triggered, and the case must be reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, 24 Vet. App. at 117-20. In particular, during a September 1963 VA examination, the Veteran reported no urinary symptoms at the time of the examination, but stated that he had nocturia 1-2 times per night and occasional burning sensation. The examiner noted that the Veteran had been in a jeep accident in October 1943, and that there was a mild to moderate stricture at the posterior urethra. A December 1968 VA examiner also noted a mild to moderate stricture of the urethra. During a January 1991 VA examination, the Veteran complained of large quantities of urine since the in-service injury to the bladder, urethra, and pelvis with surgical repair. He described increased frequency in the daytime and at night to 3-4 times per night. The examiner noted old traumatic injury with persistent urinary frequency and increased volume of urine, and that the Veteran reported having soundings due to urethral stricture. No work-up was done at that time. In a July 1992 letter, the Veteran stated that he began to bleed profusely from the tip of his penis in June 1992, and surgery was performed to remove a tumor from the bladder, at which point his providers told him that his bladder was "out of shape." Records concerning his treatment at St. Joseph's hospital from 1992 to 1994, show that in June 1992 there were pre-operative diagnoses of recurrent hematuria and clot retention, and a post-operative diagnosis of the same and carcinoma of the bladder. An August 1992 note summarizes the Veteran's treatment and symptoms in June 1992, indicating that he was in "pretty good" health until that time, when he developed gross hematuria and a lot of burning pain, which led to catheterization and surgery. In December 1992, the Veteran further wrote that the Veteran's bladder condition had plagued him through the years since the injury in service in October 1943, and that he had never received a second operation that was needed to correct the problem. The Veteran underwent a VA examination in July 1994 in connection with his claim for higher compensation based on bladder cancer, which he reported was a complication of the 1943 auto accident during service. The examiner reviewed the treatment records from St. Joseph's hospital; a March 1948 record that summarized the Veteran's injuries in October 1943; the reported dilation of the stricture in June 1944, and cystoscope in September 1945. He opined that urethral stricture itself did not predispose a patient to bladder carcinoma. However, if the stricture caused sufficient abnormality of voiding to result in chronic urinary tract infections and/or bladder stones, or to require indwelling catheter, then these events would predispose the patient to bladder cancer. The examiner stated that there were essentially no medical reports concerning the Veteran's urinary tract from 1948 to 1992. He further stated that, if the Veteran did not have voiding abnormalities, urinary tract infection, stones, or chronic indwelling catheter during this time, then it was unlikely that his posterior urethral stricture significantly predisposed him to bladder carcinoma. The examiner also noted that there was no evidence of bladder injury (as opposed to injury to the urethra), and it would be helpful if the Veteran's records from his original hospitalization in service were available. The appellant testified in July 2012 that she was married to the Veteran from 1975 until his death, and he had several incidents of bladder or urinary tract infections. She estimated that they occurred 6-7 times per year. She remembered him needing to urinate more than most people, sometimes with urgency, and complaining of a burning sensation off and on, pain in the lower abdomen, and blood in the urine at times. The appellant's competent reports of frequent bladder and urinary tract infections when considered with the July 1994 opinion that such symptoms could serve to link the fatal bladder cancer to the service connected stricture, constitute evidence that is new and relates to an element of the claim that was previously found to be missing. The new evidence would be sufficient to trigger VA's duty to obtain a medical opinion. 38 C.F.R. § 3.156(a); McLendon, 20 Vet. App. at 81; Shade, 24 Vet. App. at 117-20. Accordingly, the evidence is new and material and the claim for service connection for the cause of the Veteran's death is reopened. § 1318 DIC benefits pursuant to 38 U.S.C.A. § 1318 may be granted to a survivor spouse where the Veteran had been receiving, or was "entitled to receive," compensation for a service-connected disability that was (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for a period of at least five years immediately preceding death; or (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the Veteran was a former prisoner of war who died after September 30, 1999. The total disability rating may be based on schedular considerations or on unemployability. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The term "entitled to receive" means the Veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because: (i) VA was paying the compensation to the veteran's dependents; (ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (iii) The veteran had not waived retired or retirement pay in order to receive compensation; (iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22(b). While the Veteran did file claims, including claims for service connection for bladder cancer during his lifetime, there has been no allegation or finding of clear and unmistakable error in the decisions denying those benefits. The other circumstances outlined in 38 C.F.R. § 3.22(b) contemplate situations when the Veteran was awarded a total rating, but was not being paid for various reasons. Those circumstances were not present in the instant case. The Veteran was not continuously rated as totally disabled for at least 10 years prior to his death, or continuously after his release from active duty until at least five years immediately preceding death, nor is there any indication that he was entitled to receive such level of compensation. Rather, the Veteran's ratings ranged from 10 to 60 percent from the date of discharge through his death in October 1994. The Veteran's bladder cancer, which resulted in his death, would warrant a 100 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. However, even if service connection is established for the cause of death based on bladder cancer upon remand, this disability was first diagnosed in 1992, approximately two years prior to the Veteran's death and there is no basis other than clear and unmistakable error upon which that disability could be recognized as service connected for compensation purposes prior to his death. Although he was a prisoner of war, he died prior to September 30, 1999; therefore, the shortened time requirements for prisoners of war are inapplicable. As such, there is no new and material evidence concerning the claim for DIC benefits under 38 U.S.C.A. § 1318. There is no indication that obtaining a VA medical opinion would aid in substantiating this claim, and the evidence does not otherwise raise a reasonable possibility of substantiating the claim. As such, new and material evidence has not been received, and the claim to reopen must be denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-20. By denying this claim to reopen, the Board does not wish to diminish the Veteran's service in any way. Although the Board is sympathetic, it is constrained to follow the specific provisions of law and has no authority to grant claims on an equitable basis. See 38 U.S.C.A. § 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER As new and material evidence was received, the claim for service connection for the cause of the Veteran's death is reopened, and the appeal is granted to that extent. New and material evidence having not been received, the application to reopen the claim for entitlement to DIC pursuant to 38 U.S.C.A. § 1318 is denied. REMAND The Board finds that the evidence of record warrants a new VA medical opinion concerning the cause of the Veteran's death. The July 1994 VA examiner (prior to the Veteran's death) does not appear to have considered the available medical evidence dated from 1948 through 1992 , or the Veteran's reports of persistent and recurrent symptoms prior to his death and had no opportunity to consider the appellant's testimony noting frequent bladder and urinary tract infections. The July 1994 VA examiner indicated that, if the Veteran's urethral stricture caused voiding abnormalities, chronic urinary tract infections, bladder stones, or required chronic indwelling catheter, then it would have predisposed him to bladder cancer. As such, a new medical opinion is necessary to consider whether the symptoms reported in the decades prior to the Veteran's death were related to the service connected bladder disability and urinary stricture and, if so, were sufficient to have played a role in the development of the fatal bladder cancer. As noted by the July 1994 VA examiner, there is an indication of missing service treatment records. The claims file includes the Veteran's service induction examination and service treatment records dated from September to December 1945, including the Medical Evaluation Board report that resulted in his discharge. These records reflect that the Veteran injured his urethra and perineum in a jeep accident at Camp Maxey, Texas, on October 6, 1943. In his December 1945 claim for VA benefits, the Veteran reported treatment at the station hospital at Camp Maxey, Texas from October 6, 1943, to January 15, 1944, for a fractured pelvis and stricture of urethra. He also reported treatment for the urethra from October to December 1945, records of which appear to be in the claims file. The records concerning the injury itself, including the inpatient treatment, do not appear to have been specifically requested or obtained. Although there as an indication that the records may be fire-related, the Board finds no specific request or negative response for such records in the claims file. Further, it appears that the Veteran may have received inpatient hospital treatment for this injury, and such records may be held separately from his other service treatment records. VA has a duty to make as many attempts as necessary to obtain identified, outstanding Federal records, including military records, until a determination is made that such records are unavailable or any further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 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. Request service treatment records for inpatient or outpatient treatment for the pelvis, urethra, and bladder injuries at Camp Maxey, Texas, from October 1943 to January 1944 related to the October 1943 jeep injury. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, inform the appellant, tell her what efforts were made to get the records, and inform her of what additional efforts will be made with regard to her claim. 2. Thereafter, forward the entire claims file to an appropriate VA physician for an opinion as to whether the fatal bladder cancer was related to the service connected bladder and urethral disabilities. The examiner should review the entire claims file, including a copy of this remand, and any relevant records in an electronic format. Such review should be noted in the examination report. The examiner should respond to the following questions: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's bladder cancer was a result of his service-connected urethral stricture or bladder disability, aggravated by the urethral stricture or bladder disability or otherwise related to the October 1943 jeep injury and surgical treatment in service? (b) If not a direct cause, did the urethral stricture contribute substantially or materially to the Veteran's death, combine to cause his death, or aid or lend assistance to the production of his death from bladder cancer? (c) If not, is it at least as likely as not that the Veteran's other service-connected disabilities, including colitis and spinal disorders, contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death? In particular, did such conditions result in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury that primarily caused his death (i.e., bladder cancer due to or as a consequence of small bowel obstruction)? (c) Is it at least as likely as not that the Veteran's experiences as a POW contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death? The examiner should provide reasons for each opinion offered. All lay and medical evidence of record should be considered, including but not limited to the July 1994 VA examiner's opinion and the reports of ongoing symptoms from the Veteran and the appellant. The reports of observable symptoms or prior treatment by the Veteran and the appellant cannot be rejected merely due to an absence of supporting clinical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should explain why a non-speculative opinion cannot be offered; and whether the inability to provide the needed opinion is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs