Citation Nr: 1319844 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-05 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION 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 Veteran served on active duty from October 1972 to February 1974. He died in March 2003. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision that declined to reopen the appellant's claim for service connection for the cause of the Veteran's death. The Board denied the appeal in April 2009, and the appellant appealed that decision to the United States Court of Appeals for Veteran's Claims (Court). The parties submitted a Joint Motion for Remand, and the Court issued an October 2009 Order which incorporated the Joint Motion and vacated the Board's April 2009 decision. The Board Remanded the appeal in April 2010. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 The appellant submitted an initial claim for service connection for the cause of the Veteran's death on April 10, 2003. In July 2003, the RO prepared a rating decision which denied the claim for service connection for the cause of the Veteran's death. In August 2003, a member of Congress sent correspondence on behalf of the appellant. VA responded in that same month, indicating that the appellant's claim for service connection for the cause of the Veteran death was in the adjudication process. On September 10, 2003, the RO mailed a notice to the appellant advising her that the claim was denied. In that same month, September 2003, the RO also advised the Congressman who had expressed interest of the unfavorable resolution of the appellant's claim. In August 2004, the appellant sent correspondence stating a request "to reopen my claim for death benefits." The appellant stated that the Veteran served in Vietnam and had diabetes and high blood pressure. She closed by asking, "Please consider me for service-connected death benefits." On September 14, 2004, the RO advised the appellant that she had been notified of the denial of service connection for the cause of the Veteran's death on September 10, 2003. The RO advised the appellant that new and material evidence was required to reopen the claim for service connection for the cause of the Veteran's death. When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). In this case, the RO accepted the appellant's August 2004 statement, submitted 11 months after the notice of denial of service connection for the cause of the Veteran's death, as a request to "reopen" the claim. However, on review of this statement, it is the Board's opinion that, liberally construed, the August 2004 statement may be considered a notice of disagreement (NOD) with the September 2003 denial of service connection for the cause of the Veteran's death. The appellant appears to be raising a claim that the Veteran incurred diabetes and high blood pressure as a result of service in Vietnam. Thereafter, the appellant also raised claims that the Veteran acquired a psychiatric disorder in service that was linked to his death because that disorder interfered with the Veteran's ability to cooperate with medical treatment. Following the appellant's August 2004 request to "reopen" the September 2003 denial of service connection for the cause of the Veteran's death, the RO determined that the appellant had not submitted new and material evidence to reopen the claim. The denial of the request to reopen was affirmed by the Board in 2009. In 2009, the United States Court of Appeals for Veterans Claims issued an Order which vacated the 2009 Board decision. The Court determined that the Board had failed to discuss whether certain VA records added to the file after the July 2003 rating decision were new and material. The Court did not address interpretation of the appellant's August 2004 statement. The appellant had not waived her right to review by the RO of the records which were the basis of the Court's 2009 Order, and the Board Remanded the appeal so that the RO could conduct review of all evidence, in compliance with the Court's Order, continuing characterization of the issue on appeal as a claim that new and material evidence had been submitted to reopen the claim for service connection for the cause of the Veteran's death. The appellant's attorney did not argue, either before the Board or before the Court, that the appellant's August 2004 statement constituted timely disagreement with the September 2003 denial of the claim for service connection for the cause of the Veteran's death. Notices of denial of burial benefits were issued to the appellant in July 2003, a few days after the preparation of the July 2003 rating decision which addressed the claim for service connection for the cause of the Veteran's death. However, as the decision denying service connection for the cause of the Veteran's death was not actually issued to the appellant until September 2003, the initial adjudication of the claim must, under the governing regulations, be considered as having occurred in September 2003, not July 2003. Unfortunately, the claims file, as it now appears, is not chronologically organized, and the September 2003 notice of the denial of service connection for the cause of the Veteran's death is separated from the rating decision prepared in July 2003 by numerous documents received and issued in 2003, 2004, and 2005, including the July 2003 notices of denial of certain burial benefits. The appellant's August 2004 statement was received prior to expiration of one year following issuance of the September 2003 notice of denial of service connection for the cause of the Veteran's death. The August 2004 statement expressed dissatisfaction with denial of service connection for the cause of the Veteran's death and expressed a desire for further review of the claim. That statement constitutes a timely notice of disagreement (NOD). 38 C.F.R. § 20.201 (2012). Because the RO interpreted the August 2004 statement as a request to reopen, the RO did not address any contention or evidence the appellant has submitted since August 2004 on the merits. The RO determined that the evidence was not new and material to reopen the claim, because the additional evidence obtained since August 2004 was adverse to the claim. Nevertheless, the Board is unable to determine that the appellant was not prejudiced by review of the evidence under standards for new and material evidence rather than as continuation of the original claim for service connection for the cause of the Veteran's death. The appeal must be Remanded to assure that the appellant has been accorded due process. 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. Advise the appellant and her attorney that the claim for service connection for the cause of the Veteran's death is being reviewed as an original claim. Advise the appellant to submit any evidence she has to substantiate any fact which shows that the Veteran served in Vietnam, incurred diabetes or hypertension in service or within one year following service or as a result of service, or that the Veteran incurred an acquired psychiatric disorder in service. the appellant should be afforded an opportunity to identify and authorize release of any additional records of any type she believes might substantiate the claim, to include any records of the Veteran's clinical care or evaluation for the purposes of or during incarceration proximate to his service discharge. 2. Make an additional attempt to obtain the Veteran's personnel records. Request in particular a list of the Veteran's assignments. 3. Obtain the Veteran's complete original VA records of inpatient and outpatient treatment. 4. Ask the examiners who conducted prior reviews of the Veteran's records, if available, to provide addenda to opinions addressing whether the Veteran incurred diabetes and hypertension in service, or within one year following service, or within any other applicable presumptive period. The RO/AMC should advise each reviewer of any applicable presumption of service connection, such as whether a presumption of exposure to herbicides is applicable. The reviewer should consider the service treatment records, including any additional personnel records obtained during this Remand, the records of VA inpatient and outpatient treatment, including the report of a 1980 VA examination (of which at least one page is available), and any additional records obtained during this Remand, as well as the records and allegations submitted with or of records at the time of the appellant's initial claim for service connection for the cause of the Veteran's death submitted in April 2003. The RO/AMC should ask the appropriate reviewer to determine whether it is at least as likely as not that the Veteran incurred an acquired psychiatric disorder for which service connection may be granted (that is, a psychiatric disorder other than a personality disorder) or a medical disorder which may be linked to the Veteran's death due to endocarditis in service or as a result of service. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If any claim remains denied, a supplemental statement of the case must be provided to the appellant and her attorney. After the appellant and her representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if appropriate. 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). _________________________________________________ Tresa M. Schlecht, 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).