Citation Nr: 1319827 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-41 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318, or to include service connection for the cause of the Veteran's death. 2. Entitlement to death pension benefits. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from April 1943 to January 1946. He died in December 2007, and the appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was previously before the Board in June 2011, at which time the appeal was remanded for further development. In that remand, the Board referred the issues of entitlement to service connection for a heart disorder claimed as secondary to PTSD, and entitlement to service connection for hypertension claimed as secondary to PTSD, both for purposes of accrued benefits, to the Agency of Original Jurisdiction (AOJ). Those matters remain in need of initial review by the RO. 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 Previously, the Board remanded the issue of entitlement to DIC benefits, as it was inextricably intertwined with the issue of entitlement to service connection for the cause of the Veteran's death. On remand, the Board instructed the RO/AMC to provide notice under the Veterans Claims Assistance Act of 2000 (VCAA) addressing the requirements for establishing entitlement to DIC benefits. Specifically, the Board instructed that the notice to the appellant was to include (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 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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The AMC sent notice to the appellant, but failed to indicate the conditions for which the Veteran was service-connected. Thus, the notice the AMC sent was inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Further, and perhaps more importantly, the RO/AMC made, at best, inadequate efforts to adjudicate the issue of entitlement to service connection for the cause of the Veteran's death. In the March 2013 supplemental statement of the case, the RO merely determined that "[t]he [V]eteran did not die while in service; nor did he die from a service connected condition." There was no analysis of the appellant's contention that drinking secondary to his service connected disorder resulted in death. Thus, the RO has not fully adjudicated the issue of entitlement to service connection for the cause of the Veteran's death; this body may not consider that issue in the first instance, and as a result, is unable to adjudicate the issue of whether DIC benefits should be granted. It is noted that the appellant's assistance in adjudication of this issue has not been forthcoming. As previously noted, the death certificate reveals that the Veteran died from respiratory failure. The cessation of breathing is ultimately the final cause of death for virtually everyone. It is indicated he was hospitalized at the time of death. The underlying cause of death might provide a basis for favorable adjudication of the claim. Appellant was asked to provide a release to obtain the terminal hospital records, but did not do so. Thus, those records could not be obtained. As the matter is being remanded for other matters, an additional opportunity to cooperate with the request will be offered. As to the issue of entitlement to death pension benefits, the Board's previous remand was intended to obtain information concerning the appellant's income and expenses. Following the remand, the RO/AMC provided the appellant with VA Form 21-8049, to identify details of expenses. The appellant returned that form in December 2012, but the data she included on the form created new evidentiary questions that must be addressed before the issue may be adjudicated. Specifically, on the December 2012 Form 21-8049, the appellant indicated that her funeral and burial expenses for the Veteran totaled $14,098.27. That number is much larger than the funeral expenses of $1,800 that she listed on her December 2007 claim for benefits. Due to the discrepancy, the Board cannot determine the amount of funeral expenses the appellant paid, and therefore the case must be remanded to obtain further information. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with fully compliant VCAA notice, to specifically include notice of the disabilities for which the Veteran was service-connected at the time of his death. 2. Request that the appellant clarify the amount of funeral/burial expenses she paid in association with the Veteran's death. She should specifically be asked to provide receipts or other documentary evidence of those expenses and any payments made. Items such as cancelled checks would be helpful. Complete income and expense information should be requested. 3. Provide the appellant with a VA Form 21-4142, and ask that she complete the form to permit VA to obtain the private hospitalization records for the period of November 2007 until the time of the Veteran's death. Thereafter, obtain any treatment records, nurses' notes and any hospital summary that was produced. If records cannot be obtained, the claims file should contain evidence of the attempts made to obtain the records. In addition, if the appellant returns a completed release, but the records cannot be obtained, the hospital should be asked to identify the attending physician, and he/she should be contacted in an attempt to determine underlying causes that contributed to the respiratory arrest. 4. Adjudicate the issue of entitlement to service connection for the cause of the Veteran's death. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). These claims 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). _________________________________________________ MICHAEL D. LYON 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).