BVA9502325 DOCKET NO. 93-01 887 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran, who died in April 1990, served on active duty in the Armed Forces from December 1941 to November 1943. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, the appellant's request to reopen her claim of entitlement to service connection for the cause of the veteran's death. A notice of disagreement was received in September 1992. The statement of the case was issued in October 1992. The substantive appeal was received in November 1992. A claim for death pension has been raised even though it was not requested by the claimant. 38 U.S.C.A. § 5101(b)(1) (West 1991); 38 C.F.R. § 3.152(b)(1) (1993); Harvey v. Brown, 6 Vet.App. 390, 396 (1994); Van Slack v. Brown, 5 Vet.App. 499, 500-01 (1993); Isenhart v. Derwinski, 3 Vet.App. 177, 179-80 (1992). The RO should fully develop and adjudicate a claim for death pension. REMAND The issue of service connection for the cause of the veteran's death has previously been considered by the RO and the Board. In a June 1991 decision, the Board denied the appellant's claim on the basis that it was not well grounded. In September 1991, the appellant requested that her claim of entitlement to service connection for the cause of the veterans' death be reopened, and the RO addressed this issue in a May 1992 rating decision in which it was determined that no new and material evidence had been submitted to reopen that claim. The appellant filed a notice of disagreement as to that determination, and the RO furnished her with a statement of the case which included the laws and regulations germane to the reopening of prior final claims. However, upon a review of the record on appeal with consideration of the current governing legal criteria including the applicable case precedent of the United States Court of Veterans Appeals (Court), the Board finds the approach taken by the RO to be inappropriate in this case. The Court, in a case unrelated to the instant appeal, has held that when a claim is determined to be not well grounded, there is no claim to adjudicate on the merits. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has similarly held that when a previously and finally denied claim was reopened without the submission of new and material evidence, then the claim never existed in contemplation of law. McGinnis v Brown, 4 Vet.App. 239 (1993). The Court expounded on this legal principle in Glynn v. Brown, where it was held that "[A] decision that a claim was not well grounded or that new and material evidence was not submitted is a denial that there is a claim; it is not a final denial or disallowance of a claim." Glynn v. Brown, 6 Vet.App. 523 (1994). Pursuant to the Court's jurisprudence, the June 1991 prior Board decision which found the appellant's claim for service connection for the cause of the veteran's death to be not well grounded means that there was no claim and therefore, no prior final denial or disallowance of a claim. Hence, adjudication of the recent request for service connection for the cause of the veteran's death must proceed on a de novo basis, without regard to the legal criteria governing the reopening of claims. Accordingly, the RO should readjudicate the issue in this case on that basis and provide the appellant with an appropriate statement of the case which includes the laws and regulations governing service connection for the cause of the veteran's death. In the May 1992 rating decision, the RO denied the appellant's request to reopen her claim of entitlement to service connection for the cause of the veteran's death as well as denying her request to reopen her claim of entitlement to an award of DIC benefits pursuant to 38 U.S.C.A. § 1318 (West 1991) (formerly 38 U.S.C. § 418). However, there was no prior final denial of DIC benefits under 38 U.S.C.A. § 1318 (West 1991). In July 1992, the RO received a written statement from the appellant in which she expressed her disagreement with the decision regarding DIC benefits which the Board concludes is a notice of disagreement to the denial of DIC under 38 U.S.C.A. § 1318. Therefore, the RO should consider entitlement to DIC under 38 U.S.C.A. § 1318 on a de novo basis and if denied the RO should issue a statement of the case on the claim of entitlement to an award of DIC benefits pursuant to 38 U.S.C.A. § 1318 and the appellant should be afforded the opportunity to submit a substantive appeal as to that issue. The Board notes that additional records development is necessary in this case prior to appellate review. From a review of the record on appeal, it appears that these records may be pertinent to both the appellant's claim that the veteran's service- connected blindness led to stress and anxiety that precipitated and was the direct cause of the veteran's fatal myocardial infraction, and her claim that the veteran had been blind for the 17 years preceding his death and accordingly, entitled to a 100 percent rating during that time. In this regard, the Board notes that there are some records which may be pertinent to the current claim that have not been procured by the RO. With respect to other records development, the Board further notes that although the RO has attempted to procure some additional records with limited success, there remains some miscommunication and/or misunderstanding regarding those requests which may require the assistance of the appellant to correct, particularly with respect to dates of treatment. In this respect, there are some medical records that have not been associated with the record. The record on appeal contains the report of a VA examination dated in June 1988 in which the veteran indicated that he was receiving treatment for his visual problems from the Scheie Eye Institute at the University of Pennsylvania , Philadelphia, PA, 19104, and from Dr. Ben E. Houser, R.D. #3, Tamaqua, Pennsylvania, 18252. The record does contain a letter from Alexander J. Brucker, M.D., of the Scheie Eye Institute dated in March 1988 which indicates that the veteran had been seen in November 1987; however, the exact dates of all of the veteran's treatment is not of record. With the appellant's assistance, the RO should attempt to procure all pertinent treatment records. The record also contains several statements regarding the cause of the veteran's death from J. F. Mussoline, D.O. In a VA letter dated in October 1991, the RO attempted to procure treatment records from this physician relating to his treatment of the veteran for anxiety. In a response dated in October 1991, he indicated that the hospital would have to be contacted for hospital records as he did not have the veteran's hospital record in his office. However, in numerous statements of the appellant, it appears that this physician provided medical care to the veteran for many years, including visits to his home. As it appears that there was some misunderstanding regarding the nature of the RO request, a second request should be made for the actual treatment records for the treatment of anxiety over the years that the veteran was treated and particularly those clinical records which formed the basis of his numerous opinions of record, not just those records associated with his terminal hospitalization. The RO also attempted to procure additional records from Stephen K. Williams, M.D. of the Trappe Family Practice Center, 545 Main Street, Trappe, Pennsylvania, 19426, who had submitted several statements indicating that he had treated the veteran for 10 years prior to his death for disorders including anxiety reaction, and who indicated that the veteran had been blind during this time. He also opined that the veteran's severe anxiety due to his blindness caused his fatal heart attack. The RO in a February 1992 letter requested that Dr. Williams submit actual clinical records of treatment for anxiety reaction, and to submit records to show that the veteran's anxiety reaction caused the myocardial infarction. None of the requested information was submitted by Dr. Williams. On remand, the RO should make a second request for such records. The RO also requested the actual treatment records of Andrew M. Ecker, M.D. of Medical Associates of King of Prussia, Suite 307, 491 Allendale Road, King of Prussia, Pennsylvania, 19406, for treatment of the veteran between 1988, 1989, and 1990. However, the record contains a November 1991 note from that facility which indicates that the veteran had last been seen in their office in June 1987, and the record contains only the actual treatment records of that date. The RO should attempt to determine the dates of treatment of the veteran by Dr. Ecker prior to June 1987, and procure those records. The Board also notes that the only record relating to the veteran's terminal hospitalization is a narrative discharge summary. However, the Board has determined that the RO should ensure that all pertinent records have been associated with the record. As the veteran was hospitalized for several days prior to his death, it appears that there may be additional records, including emergency room records, progress notes, nursing notes and other records related to his condition and treatment in intensive care from April 9 through April 14, 1990. The RO should make a specific request from Coaldale State General Hospital for those records. The appellant has indicated that the veteran was treated for psychiatric disabilities at the VA medical facility in Allentown, Pennsylvania. While the record does contain some records from that facility dated between June 1988 and March 1990, it is unclear if there are any Mental Health Clinic records available. Moreover, it appears that the veteran may have received treatment at the VA medical facility in Wilkes-Barre, Pennsylvania in the past, although the dates of this treatment are unclear. With the appellant's assistance, the RO should ensure that all outpatient treatment records from all VA facilities are of record. Finally, the appellant has indicated in a July 1992 statement that the Office of Blindness and Visual Services, 96 Pennsylvania Avenue, Wilkes-Barre, Pennsylvania, 18701 also has evidence of the stress/anxiety caused by the veteran's service-connected blindness. The RO should procure any pertinent records. In view of the foregoing and in order to fully and fairly adjudicate the appellant's claim, the case is REMANDED to the RO for the following action: 1. The RO should contact the appellant and request that she provide pertinent information particularly that relative to the dates of treatment of the veteran for blindness and/or anxiety from the health care providers/facilities outlined in paragraphs number 2 through 9 below. Appropriate release forms should be signed and submitted. 2. The RO should obtain copies of the actual treatment records of the Scheie Eye Institute at the University of Pennsylvania , Philadelphia, PA, 19104. The inquiry should include a specific request for the records of Alexander J. Brucker, M.D., of the Scheie Eye Institute. 3. The RO should obtain copies of the actual treatment records relating to treatment of the veteran's visual problems from Dr. Ben E. Houser, R.D. #3, Tamaqua, Pennsylvania, 18252. 4. The RO should obtain copies of the actual treatment records of J.F. Mussoline, D.O. for the treatment of anxiety during the course of the years as specified by the appellant, and particularly those clinical records which formed the basis of his numerous opinions of record, not just those records associated with the veteran's terminal hospitalization. 5. The RO should obtain copies of the actual treatment records of Stephen K. Williams, M.D. of the Trappe Family Practice Center, 545 Main Street, Trappe, Pennsylvania, 19426, for treatment of the veteran for disorders including anxiety for the 10 years prior to the veteran's death. 6. The RO should obtain copies of the actual treatment records of Andrew M. Ecker, M.D. of Medical Associates of King of Prussia, Suite 307, 491 Allendale Road, King of Prussia, Pennsylvania, 19406, for treatment of the veteran prior to June 1987. 7. The RO should request all treatment records relating to the veteran's terminal hospitalization in the Intensive Care Unit of Coaldale State General Hospital from April 9 through April 14, 1990, including emergency room records, progress notes, nursing notes and other records related to his condition and treatment at that facility prior to his death. 8. The RO should obtain copies of all outpatient treatment records, including any records from the Mental Hygiene Clinic from VA medical facilities in Allentown, Pennsylvania, and Wilkes-Barre, Pennsylvania, with dates of treatment provided by the appellant. 9. The RO should request pertinent records from the Office of Blindness and Visual Services, 96 Pennsylvania Avenue, Wilkes- Barre, Pennsylvania, 18701 relating to stress/anxiety caused by the veteran's service-connected blindness. 10. The RO should issue a statement of the case on the issue of the claim of entitlement to an award of DIC benefits pursuant to 38 U.S.C.A. § 1318 (West 1991), which includes all applicable laws and regulations relating to entitlement to DIC benefits. The appellant should be provided with information as to the procedure necessary to advance an appeal under the provisions of 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. § 20.200 (1993), including the filing of a timely substantive appeal. 11. The RO should consider the issue of service connection for the cause of the veteran's death on a de novo basis and without regard to the legal criteria governing the reopening of claims. If the determination is adverse, the appellant and her representative should be sent a supplemental statement of the case which includes a summary of all additional evidence submitted, pertinent laws and regulations which includes the laws and regulations pertinent to service connection for cause of death, and the reasons for the decision. The case should be returned to the Board for further appellate review on the issue currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to afford the appellant due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. E. M. KRENZER 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).