Citation Nr: 1335319 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-19 828 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1972. He died in June 2008. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 RO decision, which denied service connection for the cause of the Veteran's death. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Specifically with respect to claims for DIC, the United States Court of Appeals for Veterans Claims (Court) has required that VA must provide a detailed notice to the claimant. This notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, 329 Fed.Appx. 277 (Fed. Cir. 2009) (unpublished). Review of the file shows that although the RO sent the appellant two different notice letters, she has not been provided with this Hupp information. In particular, the RO has not informed her of the conditions, for which the veteran was service connected at the time of his death; or an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition. Because she has alleged both direct and secondary service connection for the cause of her husband's death, this notification is especially important. The Veteran's death certificate reveals that he died as an in-patient in the Nashville Baptist Hospital. The Veteran received much of his outpatient medical care from physicians associated with the Baptist Hospital and underwent biopsies and various procedures at the Baptist Hospital. The record therefore contains a volume of records generated at Baptist Hospital and by physicians affiliated with the hospital. However, the inpatient records reflecting his terminal hospitalization have not been obtained for association with his claims file. Given the obvious relevance his final medical records bear toward an investigation into the cause of his death, these records should be obtained prior to further review of the appellant's claim. After these procedural and substantive steps have been taken, the Board deems that additional medical evidence is required. The appellant claims that her husband's death from liver cancer was caused by exposure to herbicides during his service in Vietnam. As an in-country Vietnam Veteran, he is presumed under law to have been exposed to herbicides such as Agent Orange during the course of his service. 38 C.F.R. § 3.307(a)(6)(iii). Although the Veteran's particular liver cancer, which was determined upon biopsy to have been an intrahepatic cholangiocarcinoma of the trabecular type, is not one of the cancer types which may be presumed under law to have been caused by herbicide exposure, the law provides that the appellant may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the holding of Combee is applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In this case, the Veteran's treating oncologist has submitted a statement reflecting his opinion that the Veteran's exposure to Agent Orange played a role in the development of his terminal cancer. The oncologist did not provide any support or rationale for this opinion, however. Nevertheless, the Board accords some probative weight to the opinion, as the oncologist treated the Veteran for his cancer since the initial diagnosis and was thus quite familiar with his case. Such an opinion, while not enough to grant the claim, sets off the duty of the VA to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant alternatively claims that her husband's liver cancer was proximately caused by his service-connected diabetes in conjunction with his service-connected coronary artery disease. She presents two different secondary service connection theories. The first is that diabetes and coronary artery disease caused a process of nonalcoholic steatohepatitis, which then caused or contributed to the Veteran's liver carcinoma. The second theory of secondary service connection she advances is that medications which the Veteran took for control of his diabetes and heart disease contributed to his liver cancer. The Veteran's primary care physician has submitted a statement reflecting that at the time of the Veteran's cancer diagnosis, he was taking Glucophage, Glyburide, Lopressor, and Aspirin; he also indicates that he is unsure of whether these medications might have contributed to the Veteran's liver cancer. Accordingly, the case is REMANDED for the following action: 1. The appellant should be provided with a Hupp compliant notification letter. 2. The RO should obtain the complete hospital records reflecting the Veteran's terminal inpatient hospitalization prior to his death in May 2008. After securing the necessary release, the RO should obtain these records for inclusion in the claims file. 3. AFTER these actions have been completed, the Veteran's claims file should be provided to a VA physician for a written opinion as to whether it is more, less, or equally likely that herbicide exposure in Vietnam caused or contributed to the Veteran's cholangiocarcinoma. The physician is also requested to address the two additional theories of secondary service connection: (1) that it is at least as likely as not (50% or greater chance) that diabetes and coronary artery disease caused a process of nonalcoholic steatohepatitis, which then caused or contributed to the Veteran's liver carcinoma; and/or (2) that it is at least as likely as not (50% or great chance) that medications which the Veteran took for control of his diabetes and heart disease contributed to his liver cancer. The opinions should be worded in terms of whether any relationship is more, less, or equally likely. The Board understands that this is a complex question. The complete rationale for all opinions expressed should be fully explained. 4. The RO/AMC should insure that the three questions above are answered fully. 5. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 or by the Court 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). _________________________________________________ JOHN J. CROWLEY 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).