BVA9507282 DOCKET NO. 93-12 475 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for the cause of the veteran's death. Entitlement to an effective date prior to August 8, 1978 for a grant of a total rating by reason of individual unemployability due to service-connected disabilities for the purpose of benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Kathy O'Connor ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from July 1943 to October 1945. A total rating based on individual unemployability was granted effective August 8, 1978, the date of receipt of a claim for that benefit. The veteran died in March 1985. Service connection for the cause of the veteran's death was denied by rating action of April 1985. However, the record reveals that, for a period from 1985 to 1992, the appellant was paid dependency and indemnity compensation benefits, due to error on the part of the Department of Veterans Affairs (VA). Further, a review of the claims folder discloses that the appellant was not properly notified of the adverse rating decision as to service connection for the cause of death. Accordingly, the Board of Veterans' Appeals (Board) agrees that the claim for service connection for the cause of death has remained in open status since April 19, 1985, the date of receipt of the claim for that benefit. A September 1992 rating decision of the St. Petersburg, Florida, Regional Office (RO) denied an earlier effective date for a grant of a total rating due to individual unemployability. This appeal to the Board is taken from rating decisions of April 1985 and September 1992. REMAND It is contended, in substance, that the veteran's long-term use of steroids, for control of service-connected arthritis and dermatitis, affected his system such that steroids became ineffective in treating emphysema, the disease causing his death. A death certificate showed that the veteran had died in March 1985 at age 76 from cardiac pulmonary arrest due to chronic obstructive pulmonary disease. At the time of the veteran's death, service connection was in effect for chronic arthritis of multiple joints, evaluated 60 percent disabling and for dermatitis, evaluated 30 percent disabling; a total rating based on unemployability had been in effect since August 1978. Service medical records were negative for respiratory disorders. Bronchial asthma was first confirmed in postservice years during treatment at a VA medical facility in February 1958. VA and private medical records reflect the veteran's treatment in postservice years for arthritis and dermatitis. Donald J. Plevy, M.D., in a statement dated in July 1978, remarked that the veteran was receiving treatment for chronic obstructive pulmonary disease and psoriatic arthritis and had been hospitalized in the past for chronic bronchitis. In another statement, received in May 1985, Dr. Plevy remarked that the veteran had been under his professional care until the veteran's demise in March 1985. It was related that the veteran had suffered from severe arthritis and dermatitis which required steroids for control of inflammation over an extended number of years. He had also developed a severe emphysema which was the primary cause of death. The physician believed that, while steroids were necessary in the control of dermatitis and arthritis, they rendered the steroid treatment for severe emphysema completely ineffective in controlling the rapidly progressive damage to the veteran's lungs. The Board believes that Dr. Plevy's statement suggests a link between the use of steroids for treating service-connected disorders and the course of the veteran's fatal chronic obstructive pulmonary disease. Although the claims file contains statements from private physicians referring to the veteran's treatment, these statements are not accompanied by actual clinical records. Testimony was elicited at the time of the hearing to the effect that he had been hospitalized on numerous occasions for treatment of the symptoms of congestive heart failure, reportedly associated with steroid use. In addition, the Board notes that the death certificate indicates that the veteran died during hospitalization, but a report of terminal hospitalization is not of record. Obtaining these records would be beneficial to the Board's review. Besides seeking service connection for the cause of death, the appellant seeks an earlier effective date for a grant of a total rating based on unemployability for the purpose of benefits under 38 U.S.C.A. § 1318. There is no suggestion in the record that the veteran attempted to file a claim with VA for a total rating prior to August 8, 1978. However, in order to afford the appellant every consideration, the Board believes that she should be provided an opportunity to produce evidence that the veteran may have attempted to file a claim for an increased or total rating at some time prior to August 8, 1978, in connection with his termination of employment in 1975. In order to ensure that VA has met its duty to assist in the development of the record and to ensure full compliance with due process requirements, the case is REMANDED for the following actions: 1. The RO should ask the appellant to provide names and addresses of medical providers from which the veteran received treatment since service. Copies of all clinical records should be obtained for insertion into the claims folder. Any physician identified should be specifically requested to provide records detailing dosage levels of steroid medications administered to the veteran and the periods over which such medication was administered. Of particular interest are complete clinical records from Plantation General Hospital and from Drs. Joseph A. Arena and Donald J. Plevy. After securing the necessary authorization, the named records should be obtained. 2. The RO should obtain copies of all VA outpatient and hospital records of the veteran's treatment not already on file. 3. The appellant should be asked whether she has any knowledge of the veteran's having filed a claim for a total rating (or increased ratings for the service-connected disorders) with VA in conjunction with his termination of employment or thereabouts. Any supporting documentation she may have should be submitted. Thereafter the RO should again adjudicate the issues. If the benefits sought on appeal are not granted, the appellant and her representative should be furnished a supplemental statement of the case and provided an opportunity for response. The case should then be returned to the Board for further consideration, if in order. The Board intimates no opinion as to the final outcome warranted. No action is required of the appellant until she receives further notice. N. R. ROBIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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) (1994).