Citation Nr: 1805767 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-02 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1980. He died in April 2011. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction remains with the St. Petersburg, Florida RO. In a May 2014 statement, the appellant requested a hearing in Washington, D.C. before a Veterans Law Judge. However, in December 2017, she withdrew her request for a hearing. Thus, the hearing request is deemed to be withdrawn. 38 C.F.R. § 20.704 (d). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in April 2011. The Veteran's death certificate lists the cause of death as carcinoma of the lung. The appellant alleges that the Veteran was exposed to asbestos while working as a vehicle mechanic. It is recognized that the servicing of friction products, such as clutch facings and brake linings, involves exposure to asbestos. See M21-1, Part IV.ii.2.C.2.d. The Veteran's Department of Defense Form 214 confirms that he served as a motor vehicle mechanic. During the Veteran's lifetime, he was service connected at a 10 percent evaluation for degenerative disc disease of the lumbar spine with degenerative changes in the thoracic spine and a 10 percent evaluation for hiatal hernia with hypertrophic gastritis. In the context of a claim for entitlement to service connection for cause of death, proper notice must include a statement of any conditions for which the Veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition and an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Unfortunately, the June 2011 notice letter indicates that the Veteran was not service connected for degenerative disease of the lumbar spine with degenerative changes in the thoracic spine and hiatal hernia with hypertrophic gastritis. Therefore, the case must be returned to the AOJ to ensure that the appellant receives a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the evidence and information required to substantiate a DIC claim in accordance with Hupp. An opinion has not been provided assessing the etiology of the Veteran's claimed lung carcinoma, nor the nature of the relationship, if any, between the cause of death noted on the certificate of death and the service-connected disabilities. Thus, a remand is necessary to properly assess the Veteran's disabilities and obtain an opinion that determines whether there is any relationship between the Veteran's cause of death and service. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2009). Further, the Board notes that there are no medical records in the claims file from the time period immediately prior to the Veteran's death. Any identified records from treatment obtained prior to the Veteran's death may contain crucial information as to the cause of the Veteran's death, and must therefore be obtained and associated with the claims folder. Additionally, records of any ongoing spine and hernia treatment should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Send the appellant a letter providing her the notice required under Hupp v. Nicholson, 21 Vet. App. 342 (2007), specifically identifying the Veteran's service-connected disabilities and providing an explanation of the evidence and information required to substantiate a cause of death claim based on such disabilities. 2. Contact the appellant and request that she provide the names and addresses of all medical care providers who treated the Veteran for his service-connected disabilities and lung carcinoma. After securing any necessary release(s), the AOJ should obtain identified records. If there is an attempt to obtain records that is unsuccessful that should be noted in the file. 3. Once the above development is completed, make arrangements to obtain a medical opinion from a VA physician. a) The entire record must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review these materials in any reports generated. b) The examiner must provide an opinion as to whether the Veteran's cause of death began in service or is otherwise related to service, including potential in-service exposure to asbestos. c) The examiner must provide an opinion as to whether any service-connected condition caused or contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to produce death. d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. 4. After the above has been completed, the AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and her representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).