Citation Nr: 0006016 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 93-12 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to an effective date earlier than August 8, 1978, for a grant of a total disability rating based on individual unemployability due to service-connected disabilities, for the purpose of receiving death benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from July 1943 to October 1945. He died in March 1985. The appellant is his widow, and she appealed to the Board of Veterans' Appeals (Board) from June and September 1992 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida-which denied her claims for service connection for the cause of the veteran's death and an effective date earlier than August 8, 1978, for a grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for the purpose of receiving death benefits under 38 U.S.C.A. § 1318. FINDINGS OF FACT 1. The veteran died in March 1985, at the age of 76, from cardiorespiratory arrest due to chronic obstructive pulmonary disease (COPD); at the time of his death, his service- connected disabilities were multiple-joint arthritis, rated as 60-percent disabling, and widespread dermatitis, rated as 30-percent disabling; he also was receiving benefits for a TDIU, which had been effective since August 8, 1978. 2. To assist the appellant in developing the evidence pertinent to her claims, the RO made various attempts to contact her, both by letters and via the telephone, to obtain information and evidence that is absolutely necessary to resolve her appeal; she did not respond to any of those requests, including as recently as September 1999 when, pursuant to the Board's most recent remand, the RO attempted to contact her at her current address of record. CONCLUSION OF LAW By not responding to the RO's requests for information and evidence necessary to make a decision on the merits of her appeal, the appellant abandoned her claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.158 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant alleged that steroid medication the veteran took for treatment of his service-connected disabilities (specifically, his multiple-joint arthritis, rated as 60- percent disabling, and his widespread dermatitis, rated as 30-percent disabling), in turn, rendered the steroid medication that he took for treatment of his COPD completely useless-thereby causing or contributing substantially or materially to his death from this condition. The appellant also alleged that the veteran was unemployable due to the severity of his service-connected disabilities as of 1975-at least 10 years prior to his death-thereby warranting the assignment of an earlier effective date for his TDIU retroactive to that point in time so that she can receive death benefits pursuant to 38 U.S.C.A. § 1318. To establish service connection for the cause of a veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either the principal or a contributory cause of his death. 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310(a), 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as to 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 an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Further, 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 a 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). 38 U.S.C.A. § 1318 states that the surviving spouse of a deceased veteran also may be paid benefits in the same manner as if the veteran's death were service-connected-provided the veteran was in receipt of or entitled to receive compensation at the time of death for service-connected disability that was continuously rated as totally disabling for a period of 10 or more years immediately preceding death. 38 C.F.R. § 3.22, in turn, liberalizes the statute by including the language "totally disabling by a schedular or unemployability [i.e., TIDU] rating." Except as otherwise provided, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a) (1999). The Board initially remanded the appellant's claims to the RO in April 1995 for further development of the evidence pertinent to her case. It was requested, in part, that she provide the names and addresses of all private medical health care providers from whom the veteran had received treatment since his discharge from the military. It also was requested that she be asked whether she had any knowledge of him having filed a claim for a total rating, or for increased ratings for his service-connected disabilities, at the time his employment purportedly terminated in 1975. The RO, however, apparently attempted to contact her at her former address of [redacted]. Consequently, no response was received. In March 1997, it was noted that these letters had been returned by the United States Postal Service and that they had been remailed that month to another address on [redacted], After a response again was not received, the RO returned the case to the Board. In August 1997, the Board again remanded the case to the RO- pointing out that, while the RO had attempted to obtain the necessary medical records through the appellant, an attempt still needed to be made to obtain the terminal hospital records from Plantation General Hospital where the veteran died in 1985. Therefore, it again was requested that she be contacted to provide the names and addresses of relevant medical care providers so that their records could be obtained and considered in connection with her appeal. The RO thereafter sent her a letter in September 1997 requesting that she complete the enclosed consent forms (VA Form 21- 4142) to permit the release of the confidential medical records from Plantation General Hospital and any other medical facilities identified, so that VA could obtain the records directly. See 38 C.F.R. § 3.159. The RO also notified her that she should indicate any treatment the veteran had received since service at VA medical centers (VAMCs) so those records could be obtained as well. Unfortunately, however, that letter was returned as undeliverable because the RO apparently sent it to an incorrect address-the appellant's former address on [redacted]. In October 1997, the RO also attempted to contact the appellant by telephone at that address-but to no avail-as records show that her telephone number at that address had been disconnected. Consequently, upon learning of this, to protect her right to procedural due process of law; to give her a fair opportunity to submit all evidence possibly favorable to her claims; and to apprise her of the consequences of failing to respond, the Board remanded the case to the RO for a third time in August 1999 as a means of correcting these problems. In September 1999, the RO sent the appellant another letter- to her most recent address of record-again requesting the necessary evidence and information in connection with her appeal. The RO also sent a copy of the letter to her designated representative of record and included a copy of the Board's most recent remand and the forms (VA Form 21- 4142) necessary to permit the release of confidential medical information concerning the veteran's treatment since service. The RO also indicated that she should respond within 60 days, and that, if she did not, her case would be returned to the Board, without further notice to her, for consideration based on the evidence already of record. The RO subsequently indicated in a December 1999 memorandum to the Board that the appellant did not respond to the request for additional information and evidence that was necessary to comply with the directives of the most recent remand. The RO also indicated in another memorandum that her representative did not either. Therefore, the RO returned the case to the Board. Since the RO's various attempts to obtain the information and evidence that is crucial to resolving the appellant's claims have been totally unsuccessful, and because she has not contacted VA at any time since late 1992 to explain her failure to respond to the RO's requests, or to provide the RO and/or her representative with a new address or her whereabouts-the Board has no alternative but to dismiss her appeal as abandoned. See 38 C.F.R. § 3.158(a). By notifying her in September 1999, subsequent to the Board's most recent remand, of the need for additional information and evidence to resolve her appeal, VA is presumed (in light of the "presumption of administrative regularity") to have properly discharged its official duty to mail her notice of the necessity for this evidence. See Jones v. West, 12 Vet. App. 98 (1998); YT v. Brown, 9 Vet. App. 195, 199 (1996). Furthermore, there is no clear evidence to the contrary to rebut this presumption-particularly since there is an actual copy on file of the letter from the RO, clearly notifying her of this need and the consequences of her failure to respond-which, again, was sent to her current address of record. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). Thus, it was her responsibility to notify VA of any change in her address, which she still has not done, and VA has to mail notice only to the latest address of record in order for this presumption to attach. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The evidence in its current state simply is not sufficient to render a decision on the merits of the appellant's case- irrespective of an April 1985 statement from one of the veteran's private treating physicians suggesting a possible correlation between his death from cardiorespiratory arrest due to COPD and his long-term use of anti-inflammatory steroid medication to treat his service-connected arthritis and dermatitis. That statement, along with a May 1985 statement from another private doctor who treated the veteran's dermatitis with steroid medication, and oral testimony during a November 1992 hearing from the appellant and her daughter-who reportedly is a registered nurse-is only sufficient to make the appellant's claims "well grounded." See 38 U.S.C.A. § 5107(a). Therefore, although the Board had a "duty to assist" her in fully developing this and the other evidence pertinent to her appeal, that evidence did not, in turn, obviate her responsibility to respond to the various requests for the other evidence and information that is equally critical to resolving her case. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the "duty to assist" the appellant in developing the evidence pertinent to her claims is not a "one-way street;" rather, it is her responsibility to advise VA of information that is essential to obtaining the putative evidence). She has not met her obligation in this instance and, as a result, her claims must be dismissed. ORDER The appellant abandoned her claims for service connection for the cause of the veteran's death and an effective date prior to August 8, 1978, for a grant of a TDIU, for the purpose of receiving death benefits under 38 U.S.C.A. § 1318; her appeal concerning these issues therefore is dismissed. N. R. ROBIN Member, Board of Veterans' Appeals