Citation Nr: 1337964 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-06 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from June 1969 to December 1971, including in the Republic of Vietnam from September 1970 to August 1971. He died in June 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant disagreed with this decision in July 2009. She perfected a timely appeal in January 2010. The issue of entitlement to service connection for Glioblastoma multiform, including as due to service-connected diabetes mellitus, for accrued benefits purposes, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) (in this case, the RO). The Appellant expressed an intent to file this claim in statements on her January 2010 VA Form 9 (substantive appeal). It appears that the RO may have begun developing this claim although the current status of this claim is not clear from a review of the claims file. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. As is explained below in greater detail, 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 on her part. REMAND The Appellant contends that the cause of the Veteran's death is related to active service. She specifically contends that the Veteran's in-service herbicide exposure while in Vietnam caused or contributed to the cause of his death. A review of the Veteran's death certificate shows that the cause of his death was Glioblastoma multiform. A review of the Veteran's DD Form 214 indicates that he served in the Republic of Vietnam from September 1970 to August 1971 so his in-service herbicide exposure is presumed. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. A review of the Veteran's death certificate shows that he died on August [redacted], 2008, while an inpatient at Thomas E. Creek VA Medical Center in Amarillo, Texas. To date, however, the RO has not attempted to obtain the Veteran's terminal medical records from this VA facility. The Board notes in this regard that the United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the Veteran's VA treatment records dated prior to his death, to include his terminal medical records from Thomas E. Creek VA Medical Center in Amarillo, Texas, should be obtained. In statements on her January 2010 VA Form 9 (substantive appeal), the Appellant stated, "On June 6th, 2008, [the Veteran] was diagnosed with a terminal brain tumor. I know that tumor was a direct result of exposure to Agent Orange. The doctors at M.D. Anderson in Houston told me the tumor fed on sugar. Because of [the Veteran's] diabetes, his sugar was highly elevated." This statement suggests that the Veteran may have been treated by a private clinician at M.D. Anderson Cancer Center in Houston, Texas, for his fatal Glioblastoma multiform (or brain tumor) prior to his death. To date, the RO has not attempted to obtain treatment records which may be available from any private clinician(s) who may have treated the Veteran for his fatal brain tumor prior to his death. Accordingly, the Board finds that, on remand, the Appellant should be asked to provide information concerning any private clinician(s) who treated the Veteran for his fatal brain tumor prior to his death and any records identified by the Appellant should be obtained. Finally, the Board notes that, in the context of a claim for DIC benefits (i.e., a claim of service connection for the cause of the Veteran's death) § 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particular notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation of the part of VA to conduct a pre-decisional adjudication of the claim prior to providing § 5103(a)-compliant notice. A review of the claims file shows that the Appellant was not provided with Hupp-compliant notice prior to the initial adjudication of her claim of service connection for the cause of the Veteran's death. The Board observes in this regard that the lack of Hupp-compliant notice in this case may be due to the fact that, although the Appellant submitted a claim for non-service-connected burial benefits in September 2008 in which she indicated that she was not claiming that the cause of the Veteran's death was due to active service, the RO nevertheless adjudicated the currently appealed claim of service connection for the cause of the Veteran's death. In any event, because this claim is being remanded for additional development, the Board finds that, on remand, the Appellant should be provided with appropriate VCAA notice. Accordingly, the case is REMANDED for the following action: 1. Issue appropriate VCAA notice to the Appellant on her claim of service connection for the cause of the Veteran's death. Any notice issued to the Appellant must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her 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, 352-53 (2007). A copy of any notice letter issued to the Appellant should be included in the claims file. 2. Contact the Appellant and ask her to identify all VA and non-VA clinicians who treated the Veteran for Glioblastoma multiform prior to his death. Obtain all VA treatment records dated prior to the Veteran's death which have not been obtained already, to include his terminal medical records from the Thomas E. Creek VA Medical Center in Amarillo, Texas. Once signed releases are received from the Appellant, obtain all private treatment records for the Veteran dated prior to his death which have not been obtained already, to include any records that may be available from M.D. Anderson Cancer Center in Houston, Texas. A copy of any records obtained, to include a negative reply, should be included in the claims file. 3. Then, send the claims file and a copy of this remand to an appropriate VA clinician for an opinion on the contended etiological relationship between the cause of the Veteran's death and active service. Based on a review of the Veteran's claims file, to include any records obtained pursuant to this remand, the VA clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or contributed materially to cause the Veteran's death. A complete rationale must be provided for any opinions expressed. The clinician is advised that, prior to the Veteran's death, service connection was in effect for PTSD, diabetes mellitus, and for peripheral neuropathy of the left lower extremity. The clinician also is advised that the Veteran's in-service herbicide exposure should be presumed based on his active service in Vietnam. The clinician finally is advised that the Appellant contends that the Veteran's in-service herbicide exposure caused him to experience elevated blood sugar levels which fed the Glioblastoma multiform (or brain tumor) that caused his death several decades later. 4. Review all evidence received since the last prior adjudication and readjudicate the Appellant's claim. If the determination remains unfavorable to the Appellant, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Appellant. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2013). _________________________________________________ MARJORIE A. AUER 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) (2013).