Citation Nr: 0707618 Decision Date: 03/14/07 Archive Date: 03/20/07 DOCKET NO. 05-01 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the veteran's cause of death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from July 1962 through July 1982. He died in January 2003 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant is seeking Dependency and Indemnity Compensation (DIC) via her claim for service connection for the cause of the veteran's death. At her hearing in August 2005, the appellant suggested that there is medical evidence in existence that is relevant to her claim, but missing from the veteran's claims folder. In particular, she referred to records from various physicians at a medical clinic at 131 French Landing in Nashville, Tennessee. The appellant suggested that the medical clinic closed and that all records regarding her late husband were forwarded to Dr. Gekas at the Centennial Medical Center ("Centennial"). While there are copies of medical records from Centennial, including Dr. Gekas' records, in the claims folder, there are not records from a medical clinic at 131 French Landing. The March 2005 letter from VA to Centennial requested copies of medical records "from 10-26-00 to 01-12-03." This was, presumably, because the claims folder already contained medical evidence dating from October 1998 through October 2000. There is no request, however, for any and all records for treatment of the veteran prior to his treatment at Centennial. 38 C.F.R. § 3.159(c)(1) (2006) requires VA to assist the appellant to obtain records from private medical care providers. In this case, the duty to assist includes an effort to obtain all records, including those from the medical clinic at which the veteran treated prior to his transfer to Centennial. The RO should fashion a request that ensures that Centennial is aware that VA needs both Centennial's records and the records from any other medical facility that Centennial has on file. As such, a remand is required in this matter. Also, during the course of the hearing, the appellant suggested that the veteran was exposed to radiation during service, which, if true, could warrant presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309 for the veteran's liver cancer. The veteran's service medical records do not show treatment for radiation exposure; however, service personnel records should be reviewed to verify whether there is any indication of radiation exposure during the veteran's twenty years of service. Under 38 C.F.R. § 3.159(c)(2), VA is required to assist the appellant to obtained such relevant records that are in the custody of the Federal government. Finally, during the pendency of this appeal the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which placed two additional duties upon the VA. Under Dingess, VA must also provide proper notice of the evidence required to establish the degrees of disability and the effective date of an award. The notice provided to the veteran in this case is not in conformity with the Court's Dingess decision. As such, this matter must be remanded for proper notice under 38 C.F.R. § 3.159(b)(1) (2006), including corrective notice under Dingess. Additionally, the appellant has claimed that the veteran's cause of death was secondary to herbicide and radiation exposure in service. Under 38 C.F.R. § 3.159(b), VA has a duty to notify the appellant of the evidence necessary to establish service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that VA has met its duty to notify the appellant under 38 C.F.R. § 3.159(b), including issuing corrective notice that is compliant with Dingess v. Nicholson, 19 Vet. App. 473 (2006), and which notifies the veteran of the evidence necessary to establish presumptive service connection following exposure to herbicides and radiation in service. 2. Ensure that VA has met its duty to assist the appellant under 38 C.F.R. § 3.159(c)(2) by obtaining any and all relevant records from Centennial Medical Center, to include any records sent to Centennial at the time the veteran was transferred to its care from the medical clinic at 131 French Landing in Nashville, Tennessee. All records obtained should be associated with the claims folder. 3. Ensure that VA has met its duty to assist the appellant under 38 C.F.R. § 3.159(c)(1) by associating with the claims folder all relevant service records that may verify that the veteran was exposed to radiation during service, including his entire service personnel record. The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).