Citation Nr: 1331684 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-12 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from January 1985 to February 2004 and had a prior period of active duty for training from December 1974 to April 1975. The Veteran died in September 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (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 The Veteran died in September 2008. Her death certificate shows that the immediate cause of her death was metastatic ovarian cancer with brain metastasis and that normal pressure hydrocephalus was another significant condition contributing to cause death. The Veteran had established service connection for bilateral shoulder bursitis, rated 20 percent, each, residuals of an aneurysm, rated 10 percent, and residuals of left wrist surgery, left third metacarpal fracture, lumbar strain, bilateral patellofemoral pain syndrome, a right lower extremity vascular disorder, cervical dysplasia, and an appendectomy scar, rated 0 percent, each. The appellant's theory of entitlement to service connection for the cause of the Veteran's death is essentially that her service-connected residuals of an aneurysm contributed to the development of the cancer. He asserts that his research found (and he was told by the Veteran's provider) that there is a link between the weakened blood vessels from the aneurysm and cancer cells attacking the weak blood vessels. In February 2010 a VA provider (professional training unidentified) reviewed the claims file and opined that aneurysms and metastatic adenocarcinoma to the brain are two separate entities and that the Veteran's service-connected "intracranial aneurysms have no relationship or cause and effect of her developing metastatic carcinoma of the ovary to the brain." . Governing regulations provide that: The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of a disease primarily causing death. 38 C.F.R. § 3.312(c)(3)(emphases added). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). The Veteran's service-connected residuals of aneurysm affected a vital organ. Whether or not they contributed to cause her death (as is argued) is a medical question. The February 2010 opinion secured by the RO is conclusory (unaccompanied by rationale/citation to supporting factual data or medical literature), and does not address this question/the theory of entitlement alleged. Therefore, it is inadequate for rating purposes. Also, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice in a claim for dependency and indemnity compensation (DIC) must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. A November 2008 letter advised the appellant of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. It explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. It also instructed the appellant to "[p]rovide medical evidence that will show a reasonably probability that the condition that contributed to the veteran's death was caused by injury or disease that began during service." Such a statement does not, however, comport with notice requirements outlined by the Court in Hupp; specifically, the Veteran's service-connected disabilities were not identified. Accordingly, the case is REMANDED for the following: 1. The RO must send the appellant a letter providing him the notice required under Hupp, specifically identifying the Veteran's service-connected disabilities and providing an explanation of the evidence and information required to substantiate a DIC claim based on such disabilities, as well as an explanation of the evidence and information required to substantiate a DIC claim based on any conditions not yet service-connected. The appellant should have opportunity to respond. 2. Thereafter, the RO should arrange for the Veteran's record to be forwarded to an appropriate physician for review and an advisory medical opinion. Based on review of the record, and with consideration of the explanation offered above, the consulting physician should provide opinions that respond to the following: (i) Is it at least as likely as not (a 50 % or greater probability) that any disability listed as a cause of the Veteran's death was incurred or aggravated during her active duty service? (ii) Is it at least as likely as not (a 50 % or greater probability) that one of the Veteran's service connected disabilities was a contributory cause of her death? The rationale provided for the response to this question should specifically address the effects of any disability that affected a vital organ (the brain, e.g.), whether the service-connected disabilities had debilitating effects, and the theory of entitlement proposed by the appellant (that weakening of blood vessels to the brain from aneurysm rendered the Veteran less capable of resisting metastasis of her ovarian cancer to the brain). The consulting physician must explain the rationale for all opinion, citing to supporting factual data and medical literature, as deemed appropriate.. 3. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).