BVA9502648 DOCKET NO. 91-37 697 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from January 1943 to August 1945. He was a prisoner-of-war (POW) of the German government for approximately nine months during World War II. He died in August 1989, and the appellant is his widow. This cases arises on appeal from a rating action dated in October 1989 of the New York, New York, Regional Office (RO), which denied a claim for entitlement to service connection for the cause of the veteran's death, as well as entitlement to dependency and indemnity compensation benefits as the survivor of a veteran rated as totally disabled prior to his death. In March 1992, the Board of Veterans' Appeals (Board) issued a decision denying the appellant's claims. The United States Court of Veterans Appeals (Court), however, issued an order which vacated the Board's decision with regard to the issue of service connection for the cause of the veteran's death, and remanded the case for readjudication in compliance with the instructions outlined in the appellant's Unopposed Motion for Remand. The issue of entitlement to dependency and indemnity compensation was not appealed, and was dismissed by the Court. [citation redacted]. The case was returned and docketed at the Board in August 1993. The Board thereaftersought an opinion from an independent medical expert (IME) withregard to the issue of the cause of the veteran's death. The IME's report was received in June 1994. After review, it is our judgment that the record is not yet ready for appellate consideration on entitlement to the benefit sought on appeal. REMAND The appellant essentially contends that the veteran's death from bronchogenic carcinoma was the result of service. Specifically, it is maintained that an eight millimeter shrapnel fragment retained after a combat-incurred wound in World War II caused the eventual development of lung cancer. The appellant additionally avers that the veteran's depression associated with service- connected post-traumatic stress disorder (PTSD) led to a suppression of his immune system, which in turn resulted in, or contributed to death. She also asserts that multiple dental problems, including recurrent periodontal abscesses, led to the spread of abscesses in the lung, also contributing to death. The veteran's death certificate lists the cause of death as "respiratory arrest" due to metastatic bronchogenic carcinoma. In a letter from Dr. J. Donahue, dated in April 1990, he states that the veteran first presented in May 1989 with multiple severe medical problems, including pronounced weight loss, severe weakness, severe shortness of breath, and edema. Tests revealed a primary lung mass, which was diagnosed as bronchogenic squamous cell carcinoma, with a large abscess present. He subsequently underwent evaluation and treatment at Saratoga Hospital, and ultimately expired in August 1989. The claims folder does not, however, contain any of the diagnostic or treatment records associated with the veteran's terminal illness, nor does it appear that any attempt has been made to obtain these reports. In his letter, Dr. Donahue states that further information could be obtained from Dr. Desmond Del Giacco, a pulmonary specialist in Saratoga Springs, New York, who cared for the veteran prior to death. Although the record contains a brief statement from Dr. Del Giacco, none of his medical reports addressing the veteran's treatment are contained in the claims folder. The terminal medical records associated with the veteran's final hospitalization at the Saratoga Hospital have also not been made a part of the claims folder. Moreover, it is unclear from Dr. Donahue's letter whether he actually treated the veteran prior to death, or was simply asked to render a statement based on information provided during an interview with the appellant. If he did render such treatment, we believe that medical records associated with these evaluations would be relevant and probative in this case. We also note that, according to the appellant's sworn testimony, the veteran suffered from numerous medical problems, particularly the residuals of tuberculosis and dental abscesses, which arose out of his incarceration as a POW. Both Drs. Donahue and Del Giacco refer to these conditions in their respective statements. Although the appellant alluded to a history of medical treatment for these disorders and their residual effects, records of such treatment have not been submitted, nor has additional pertinent information been gathered so that these records might be obtained. We believe that such reports, particularly those records compiled in the years immediately preceding the veteran's death, would greatly assist in our evaluation of this claim. In light of the foregoing, this case is REMANDED for the following: [NOTE: In all contacts with the appellant, it is important that the provisions of VBA Circular 21-92-4 (May 13, 1992) be followed.] 1. The RO should contact the appellant and request that she submit the names and addresses/locations of any VA or private facilities which rendered treatment for the veteran's pulmonary, dental, or psychiatric complaints prior to death. She should be specifically requested to furnish the names and addresses of all private or VA physicians who were providing medical treatment at the time of the veteran's death. Once this information is received, and the proper releases are signed, the RO should contact these facilities and physicians to request that they submit all treatment, diagnostic, and hospitalization records for the veteran. All information received should thereafter be associated with the claims folder. 2. After securing the necessary releases from the appellant, the RO should contact Dr. Desmond Del Giacco, 69 Caroline Street, Saratoga Springs, New York 12866, and Dr. James L. Donahue, 88 Main Street, Greenwich, New York 12834, to obtain copies of all diagnostic and treatment records for the veteran. The RO should also contact the Saratoga Hospital in Saratoga Springs, New York, to obtain copies of all hospitalization records for the veteran. Upon receipt, these records should be associated with the claims folder. Once this development is completed, the RO should review the entire claims folder and readjudicate the issue of entitlement to service connection for the cause of the veteran's death. If the decision remains adverse to the appellant, she and her attorney should be furnished with a supplemental statement of the case, and afforded a reasonable opportunity for reply. The claims folder should thereafter be returned to the Board for appropriate appellate consideration. The purpose of this remand is to comply with our duty to assist the appellant in the development of her claim. In light of the long pendency of this appeal, we urge the RO to act both expeditiously and diligently in the processing of this remand. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).