Citation Nr: 1324892 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-07 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to dependency eligibility based on permanent incapacity for self-support. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from July 1942 to October 1945. The Veteran died in July 1955, and the appellant is his surviving son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is required before the issues on appeal can be adjudicated. VA has a duty to assist claimants in obtaining evidence pertinent to their claims. 38 C.F.R. § 3.159(b), (c)(1) (2012). Further action must be taken to meet the duty to assist in this case. Regarding the claim of entitlement to service connection for the Veteran's cause of death, the appellant has not been furnished with legally compliant notice. 38 U.S.C.A. §§ 5103, 5103A (2012); Hupp v. Nicholson, 21 Vet App. 342 (2007). Therefore, on remand, the appellant must be provided with such notice. In addition, in his substantive appeal received in August 2009, the appellant listed several physicians from whom he received "constant" medical care, to include M.G., M.C., H.S., P.H., S.J., and H.R. In an August 2012 statement, the appellant reported that his doctors informed him that they did not receive a request for records. The RO obtained records from M.G.; however, there is no indication that a request or attempt to obtain the aforementioned remaining private treatment records took place. Therefore, VA must contact the appellant and ask him to identify any healthcare provider from whom he receives ongoing medical care. Upon the appellant's response, VA must request any outstanding treatment records from the healthcare providers identified by the appellant. Finally, following the April 2012 supplemental statement of the case, additional records were added to the claims file that the RO has not considered, to include a medical opinion from the appellant's private physician dated in June 2012. This evidence is relevant to the appellant's claim of entitlement to dependency eligibility based on permanent incapacity for self-support, which is currently on appeal, and a waiver of RO consideration of such evidence has not been received. Therefore, the additional evidence must be considered by the RO. 38 C.F.R. §§ 19.37, 20.1304 (2012). Accordingly, the case is remanded for the following actions: 1. Provide the appellant corrective notice. 38 U.S.C.A. §§ 5103, 5103A; Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter must include (1) a statement of the service-connected disorders at the time of the Veteran's death, (2) an explanation of the evidence and information required to substantiate the cause of death claim based on the Veteran's previously service-connected disorders, and (3) an explanation of the evidence and information required to substantiate the cause of death claim based on a disorder not yet granted service connection. 2. The RO must contact the appellant and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The appellant and his representative must then be given an opportunity to respond. 3. 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, the claims must be readjudicated with consideration of the evidence of record, to include any newly acquired evidence submitted without a waiver of RO jurisdiction. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).