Timberlake v. Gober ( 2000 )


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  •            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
    No. 96-1637
    MARION L. TIMBERLAKE , APPELLANT ,
    V.
    HERSHEL W. GOBER,
    ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
    On Appeal from the Board of Veterans' Appeals
    (Decided Sep 15, 2000)
    Michael P. Horan, of Washington, D.C., was on the pleadings for the appellant.
    John H. Thompson, Acting General Counsel; Ron Garvin, Assistant General Counsel;
    Carolyn F. Washington, Deputy Assistant General Counsel; and Gregory W. Fortsch, all of
    Washington, D.C., were on the brief for the appellee.
    Before HOLDAWAY, STEINBERG, and GREENE, Judges.
    STEINBERG, Judge: The appellant, widow of veteran Norman Timberlake, appeals through
    counsel an October 15, 1996, Board of Veterans' Appeals (BVA or Board) decision that denied
    Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC) benefits
    pursuant to 
    38 U.S.C. § 1310
    , on the basis that she had not presented a well-grounded claim that the
    veteran's death had been service connected, and also pursuant to 
    38 U.S.C. § 1318
    . Record (R.) at
    11. The appellant has filed a brief and a reply brief, and the Secretary has filed a brief, and both
    parties have filed responses to several Court supplemental briefing orders. The appellant has also
    filed a supplemental brief -- as to an April 22, 1999, decision of the Vice Chairman of the BVA that
    denied reconsideration of the BVA decision on appeal -- and the Secretary has filed a response.
    Finally, the appellant has filed eleven letters to the Clerk of the Court advising of supplemental
    authority [hereinafter notices of supplemental authority] pursuant to Rule 28(g) of this Court's Rules
    of Practice and Procedure (Rules). This appeal is timely, and the Court has jurisdiction pursuant to
    
    38 U.S.C. §§ 7252
    (a) and 7266(a). For the reasons that follow, the Court will vacate the BVA
    decision and remand the appellant's DIC claim for readjudication.
    I. Background
    Norman Edward Timberlake served in the U.S. Army from July 1943 to January 1946. R. at
    114. In May 1989, a VA regional office (RO) awarded him service connection for PTSD, rated as
    70% disabling, effective in March 1988. R. at 240-41. In July 1991, the Board awarded him service
    connection for residuals of trench foot (R. at 335-40), as to which award the VARO in August 1991
    assigned a 10% rating, also effective in March 1988 (R. at 343). In October 1991, the RO awarded
    the veteran a rating of total disability based on individual unemployability (TDIU), effective
    September 1991 (R. at 357-58), and this 100% rating continued until his death in December 1994
    (R. at 12 (BVA determination that "[a]t the time of the veteran's death . . . a [TDIU rating] had been
    in effect since September 1991"); R. at 419).
    Private medical records dated in September 1994 from the Dexter Nursing Home showed that
    the veteran fell but suffered no "apparent injury". R. at 528. Upon his December 1994 death at a
    private medical facility, the death certificate listed "natural" as the manner of death and
    "[c]erebrovascular [a]ccident" as the cause of death. R. at 419. Pneumonia and chronic Coumadin
    use were listed as "[o]ther significant conditions contributing to death but not resulting in the
    underlying cause". 
    Ibid.
     (Coumadin is a "trademark for preparations of warfarin sodium", an
    "anticoagulant". DORLAND 'S ILLUSTRATED MEDICAL DICTIONARY 387, 1839 (28th ed. 1994). It "is
    indicated for the prophylaxis and/or treatment of venous thrombosis and its extension, and
    pulmonary embolism". PHYSICIANS' DESK REFERENCE 929 (53d ed. 1999).)
    In January 1995, the appellant filed a VA Form 21-534 claim for DIC benefits on which she
    checked a box indicating that she was "claiming that the cause of [the veteran's] death was due to
    service". R. at 445-48. That same month, the RO denied, inter alia, service connection for the cause
    of the veteran's death and entitlement to DIC benefits pursuant to 
    38 U.S.C. § 1318
    . R. at 450-52.
    Later that month, the Board remanded a claim that had been filed by the veteran during his lifetime
    for special monthly compensation based on the need for aid and attendance. R. at 460-61. In
    conjunction with that remand, the Board, clearly unaware of his recent death, ordered that the
    2
    "veteran . . . be afforded another VA examination". 
    Ibid.
     The Board also ordered the RO to
    "formally adjudicate the issue of entitlement to service connection for hypertension" after finding
    that the claim "was received in February 1993". R. at 458, 461.
    In March 1995, the appellant filed a Notice of Disagreement (NOD) as to the January 1995
    RO decision; she contended that the veteran's PTSD had caused him to "fall[ ] numerous times" and
    appeared to suggest that a fall had caused his death. R. at 463. Specifically, she stated that the
    veteran "died from trauma to the brain which caused profuse bleeding in the brain and because he
    was on Coumadin, it was inoperable." 
    Ibid.
     The RO's March 1995 Statement of the Case (SOC)
    continued to deny the claim on the ground that "[t]he death certificate show[ed] the cause of death
    as cerebrovascular accident", a condition not found in the veteran's SMRs. R. at 471. The RO also
    noted that although the veteran had been receiving a TDIU rating since September 1991, the
    appellant's entitlement to DIC under 
    38 U.S.C. § 1318
     was "not established because a total
    evaluation had not been in effect for 10 continuous years immediately preceding death." R. at 470-
    71. In her Substantive Appeal to the Board, the appellant argued again that the veteran "was 100%
    service connected disabled at the time of his death" and that the cause of his death was "due to a fall"
    in December 1995. R. at 474. She stated that she was attempting to have the death certificate
    "legally corrected" to reflect that fact.       
    Ibid.
       In addition, she stated that the veteran's
    "service[-]connected disabilities were well documented on his discharge and [that] he should have
    received compensation from that time". R. at 475. She requested compensation "for 47 years of
    hell" that she went through with her husband "with no help" from VA and suggested that the veteran
    would not have suffered as much if VA had treated him differently during his lifetime. R. at 476.
    In August 1995, the appellant submitted a letter to the RO that again indicated that she was
    attempting to have the death certificate changed, and that included as enclosures additional medical
    records. R. at 497-533. The RO considered the evidence and again denied her DIC claim, issuing
    a Supplemental SOC (SSOC) that same month. R. at 539-41. In October 1995, she submitted a
    letter to the RO that again stated that the veteran had died due to head trauma from a fall caused by
    medications that he was taking for his service-connected PTSD and, as support for her position, cited
    to the "1993 edition" of THE PHYSICIAN 'S COMPENDIUM OF DRUG THERAPY . R. at 545. In addition,
    she mentioned the veteran's claims pending during his lifetime that were addressed in the January
    3
    1995 BVA remand decision (R. at 460) issued subsequent to his death; she stated: "I . . . notified [the
    RO of the veteran's] . . . death and asked what I should do about this remand as [the veteran] wasn't
    around for tests and the like. They said I should do nothing, that I would be sent a form to fill out.
    Well, it's been eleven months and I've not seen or heard any further word on it". R. at 546.
    In November 1995, the RO issued a decision that continued to deny service connection for
    the cause of the veteran's death and that construed the appellant's "request[ as to] the status" of the
    veteran's "appeal pending at the time of his death" as "a claim for accrued benefits." R. at 548. The
    RO then denied the accrued-benefits claim because there was no evidence of hypertension during
    service or within one year following service and "no additional evidence to show [that] the veteran
    was in need of aid and attendance due solely to his service[-]connected disabilities". 
    Ibid.
     A
    November 1995 SSOC referred to the appellant's "copy of the veteran's medications and possible
    side effects" (i.e., R. at 545), but continued to deny the DIC claim. R. at 553.
    An informal brief submitted to the BVA on behalf of the appellant by the Paralyzed Veterans
    of America raised the following issues: (1) "[T]hat the veteran's service-connected disabilities did
    contribute to his death" because he died "due to an apparent cerebrovascular accident . . . on
    December 14, 1994, while in a hospital under VA contract"; (2) that the appellant wished to pursue
    a contention of "potential entitlement . . . under 
    38 U.S.C. § 1151
    "; and (3) that in the RO's
    "consideration of entitlement to accrued benefits" it had failed to "conduct a thorough review of the
    entire claims folder" for instances of CUE, specifically asserting CUE as to the May 1989 RO
    decision's failure to consider certain VA regulatory provisions that would have entitled him to a
    100% rating. R. at 567.
    In the October 15, 1996, BVA decision here on appeal, the Board first "referred to the RO"
    the appellant's claim for DIC benefits pursuant to section 1151 (disability resulting from VA medical
    treatment) and her claim of CUE in the May 1989 RO decision rendered to the veteran. R. at 10-11.
    The Board then denied as not well grounded the appellant's claim for service connection for the
    cause of the veteran's death "[b]ecause the appellant has not presented any competent medical
    evidence which links the veteran's fatal cerebrovascular accident to a period of service or to his
    service-connected PTSD or treatment therefor[ ]". R. at 19. In addition, the Board noted that in
    order for the appellant to qualify for DIC the veteran must have been in receipt of a 100% rating for
    4
    10 years prior to his death and that, in this case, he had been in receipt of a 100% rating only "since
    September 1991". R. at 19-20. The Board then posited that even if the appellant "prevails on a
    claim of [CUE]" as to the 70% rating assigned in May 1989 (R. at 240-41), "such a [100% rating
    based on CUE] would still not be in effect for at least 10 years preceding the death of the veteran
    since the effective date, March 2, 1988, would not change", having not been part of the CUE claim
    referred to the RO. R. at 20. In January 1997, the Board issued its "Certified List", i.e., "the
    inclusive list of evidence and material of record deemed relevant in the adjudication of the issue(s)
    set forth in [its] decision." R. at 570-76.
    II. Analysis
    A. DIC Based on Service Connection for Cause of Veteran's Death
    Pursuant to 
    38 U.S.C. § 1310
    , DIC is paid to a surviving spouse of a qualifying veteran who
    died from a service-connected disability. See Darby v. Brown, 
    10 Vet.App. 243
    , 245 (1997); Hanna
    v. Brown, 
    6 Vet.App. 507
    , 510 (1994). A veteran's death will be considered service connected where
    a service-connected disability was either the principal or a contributory cause of death. 
    38 C.F.R. § 3.312
    (a) (1999). A service-connected disability is the principal cause of death when that disability,
    "singly or jointly with some other condition, was the immediate or underlying cause of death or was
    etiologically related thereto." 
    38 C.F.R. § 3.312
    (b) (1999). To be a contributory cause of death, the
    disability must have "contributed substantially or materially" to death, "combined to cause death,"
    or "aided or lent assistance to the production of death." 
    38 C.F.R. § 3.312
    (c) (1999).
    A claim for DIC is a new claim; therefore, like any other claim for VA benefits, a DIC claim
    must be well grounded. See Darby, supra; Johnson (Ethel) v. Brown, 
    8 Vet.App. 423
    , 426 (1995);
    
    38 U.S.C. § 5107
    (a) ("person who submits a claim for benefits under a law administered by the
    Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and
    impartial individual that the claim is well grounded"). A well-grounded claim is "a plausible claim,
    one which is meritorious on its own or capable of substantiation. Such a claim need not be
    conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski,
    
    1 Vet.App. 78
    , 81 (1990). For a DIC claim based on service connection for the cause of death to be
    well grounded, there generally must be (1) medical evidence of a current disability; (2) medical
    5
    evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a
    disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or
    disease and the current disability. See Caluza v. Brown, 
    7 Vet.App. 498
    , 506 (1995), aff'd per
    curiam, 
    78 F.3d 604
     (Fed. Cir. 1996) (table); see also Elkins v. West, 
    12 Vet.App. 209
    , 213 (1999)
    (en banc) (citing Caluza, supra, and Epps v. Gober, 
    126 F.3d 1464
    , 1468 (Fed. Cir. 1997) (expressly
    adopting definition of well-grounded claim set forth in Caluza, supra)). This evidence as to these
    three Caluza elements need meet only a threshold that is "'unique and uniquely low'" in order to
    show well groundedness; that is, the "claim need only be 'plausible'." Beck v. West, 
    13 Vet.App. 535
    ,
    540 (2000) (quoting Hensley v. West, 
    212 F.3d 1255
    , 1261-62 (Fed. Cir. 2000)). In terms of a DIC
    claim based on cause of death, the first Caluza requirement, "evidence of a current disability, will
    always have been met (the current disability being the condition that caused the veteran to die)".
    Carbino v. Gober, 
    10 Vet.App. 507
    , 509 (1997), aff'd sub nom. Carbino v. West, 
    168 F.3d 32
     (Fed.
    Cir. 1999).
    The credibility of the evidence presented in support of a claim is generally presumed when
    determining whether it is well grounded. See Beck, supra (holding that, at well-groundedness stage,
    Board may not weigh credibility of evidence submitted in support of claim); Elkins, 12 Vet.App. at
    219 (citing Robinette v. Brown, 
    8 Vet.App. 69
    , 75-76 (1995)). A BVA determination that a claim
    is not well grounded is a question of law that is subject to de novo review by this Court. See
    Hensley, 
    212 F.3d at 1263
    ; Robinette, 8 Vet.App. at 74; cf. Nolen v. Gober, __ F.3d __, No. 99-7173,
    
    2000 WL 1055987
    , at *3 (Fed. Cir. Aug. 1, 2000) ("in a case . . . in which a claim has been deemed
    well grounded [by the BVA,] . . . the Court . . . would have no reason to reconsider the question of
    well groundedness").      However, BVA findings of fact pertaining to the question of well
    groundedness are to be reviewed by this Court under the "clearly erroneous" standard of review set
    forth in 
    38 U.S.C. § 7261
    (a)(4). See Hensley v. West, 
    212 F.3d at 1263
    . Under this deferential
    standard, "if there is a 'plausible' basis in the record for the factual determinations of the BVA, . . .
    [the Court] cannot overturn them." Gilbert v. Derwinski, 
    1 Vet.App. 49
    , 53 (1990).
    1. BVA Obligation to Address Every Item on Certified List. The appellant's first argument
    is that the Board failed to address in its decision "60 or more pieces of evidence listed in the [Board's
    January 1997] certified list" (R. at 570-76). Brief (Br.) at 3. Her argument appears to be that remand
    6
    is warranted solely based on the Board's failure to address explicitly these items of evidence,
    regardless of the content of the items.
    The extent of the Board's statutory duty to consider and, in some cases, address in its
    decision, the evidence of record is set forth in 
    38 U.S.C. § 7104
    , which provides in pertinent part:
    7
    § 7104. Jurisdiction of the Board
    (a) All questions in a matter which under section 511(a) of this title is subject
    to decision by the Secretary shall be subject to one review on appeal to the Secretary.
    Final decisions on such appeals shall be made by the Board. Decisions of the Board
    shall be based on the entire record in the proceeding and upon consideration of all
    evidence and material of record and applicable provisions of law and regulation.
    ....
    (d) Each decision of the Board shall include--
    (1) a written statement of the Board's findings and conclusions, and the
    reasons or bases for those findings and conclusions, on all material issues of fact
    and law presented on the record . . . .
    
    38 U.S.C. § 7104
    (a), (d)(1) (emphasis added). A significant distinction is made within the section
    7104 passages quoted above; subsection (a) requires the Board to "base[ ]" its decision "on the entire
    record in the proceeding" and to make its decision "upon consideration of all evidence and material
    of record", 
    38 U.S.C. § 7104
    (a) (emphasis added); however, subsection (d) requires that the BVA
    provide "a written statement" only as to "all material issues of fact", 
    38 U.S.C. § 7104
    (d)(1)
    (emphasis added). Similarly, the applicable VA regulation requires that "[d]eterminations as to
    service connection will be based on review of the entire evidence of record". 
    38 C.F.R. § 3.303
    (a)
    (1999) (emphasis added). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
    held that the regulatory requirement that VA "review . . . the entire evidence of record" is not a
    requirement that the adjudicator "analyze and discuss" all such evidence. Gonzales v. West,
    
    218 F.3d 1378
    , 1380-81 (Fed. Cir. 2000). The Federal Circuit concluded: "If silence leaves veterans
    lacking 'assurance' . . . , then so be it". Hence, the statute and VA regulation refute the appellant's
    argument that a remand is required based on the BVA's failure to address every item of evidence on
    its certified list.
    Moreover, the Court has summarized the Board's duty in this regard as follows:
    The Board is required to include in its decision a written statement of the reasons or
    bases for its findings and conclusions on all material issues of fact and law presented
    on the record . . . . The statement must be adequate to enable an appellant to
    understand the precise basis for the Board's decision, as well as to facilitate review
    in this Court. . . . To comply with this requirement, the Board must analyze the
    8
    credibility and probative value of the evidence, account for the evidence that it finds
    to be persuasive or unpersuasive, and provide the reasons for its rejection of any
    material evidence favorable to the veteran.
    Allday v. Brown, 
    7 Vet.App. 517
    , 527 (1995) (emphasis added) (citing, inter alia, Gilbert, 1 Vet.App.
    at 57).
    The appellant has not argued that the Board's decision is so inadequate that she cannot
    "understand the precise basis for the Board's decision" or that it is inadequate for "review in this
    Court." Ibid. Similarly, she has not argued (as to these 60 pieces of evidence) that the Board has
    failed to "provide the reasons for its rejection of any material evidence favorable to the veteran".
    Ibid. (emphasis added). In fact, she has not analyzed in any manner the evidence that she asserts was
    not addressed by the Board; she simply lists the 60 items in her brief without providing any
    discussion as to their nature. See Br. at 4. Our caselaw requires only that the Board address its
    reasons for rejecting evidence that is favorable to the veteran. The appellant has not asserted such
    a failure in this case, and the Court is not inclined to conjure such an argument on her behalf.
    The Court's reasoning above, as to the statute, regulation, and caselaw, also resolves the
    appellant's contention as to the pertinence of a June 8, 1993, VA memorandum described in her brief.
    That VA memorandum is not attached to her brief, and the appellant does not provide the Court with
    sufficient information to enable the Court to procure a copy of that memorandum on its own;
    however, she quotes a passage from the VA memorandum and asserts that it requires the Board to
    provide a certified list as to all items of evidence "specifically relevant in arriving at the [Board's]
    decision". Br. at 3 (discussing what appellant describes as "Secretary's Memorandum (June 8,
    1993)"). Even if the memorandum says what the appellant asserts that it says, the relevance of a
    particular item is not dispositive of the materiality of that item, for purposes of section 7104(d)(1),
    to the basis for the Board's denial of the claim. The appellant's implication that the appearance of
    an item on the certified list elevates that item to a "material" status for purposes of section 7104(d)(1)
    is simply incorrect; it is certainly possible that any of those "60 or more pieces of evidence" did not
    support the merits of her claim. See Evans (Samuel) v. Brown, 
    9 Vet.App. 273
    , 283-84 (1996)
    (distinguishing "relevant evidence" ("'[e]vidence tending to prove or disprove an alleged fact'
    (emphasis added)") from "material evidence" (evidence that is "probative" or "'tend[s] to prove, or
    actually prov[es] an issue"') (citing BLACK'S LAW DICTIONARY 1203 (6th ed. 1990)). For example,
    9
    an NOD is always specifically relevant to the Board's decision because it serves as the jurisdictional
    predicate for BVA review. See 
    38 U.S.C. § 7105
    (a) ("[a]ppellate review will be initiated by a[n
    NOD]").
    However, once the NOD requirement is satisfied, the content of the NOD may or may not
    raise an issue of material fact that the BVA would be required to address in its written decision.
    Similarly, SMRs or other medical records that were examined for the purpose of ensuring that, as
    the BVA found in this case, "the record is devoid of any competent medical evidence" of nexus
    (R. at 19), do not necessarily present an issue of material fact that requires each individual SMR to
    be referenced in the BVA decision (because it can consider the SMRs in toto). Many other
    procedural documents (such as a Substantive Appeal, a statement of appellate rights, signed medical
    records release forms, etc.) may be relevant to a determination as to whether a particular case is ripe
    for appellate consideration or as to whether the RO has conducted all appropriate development and
    adjudication, but those documents also need not necessarily be addressed in the Board's decision in
    order for that decision to be in compliance with section 7104(d)(1). Based on the statute, regulation,
    and caselaw, the Court cannot conclude that the BVA in this case erred simply by failing to reference
    in its decision each item of evidence contained on its certified list. The VA memorandum quotation
    in the appellant's brief does not, on its face, suggest an opposite conclusion.
    2. Medical-Textbook Evidence. The appellant argues that her claim should be considered
    well grounded based on particular evidence not addressed by the Board, that is, her citation to the
    "1993 edition" of a treatise, THE PHYSICIAN 'S COMPENDIUM OF DRUG THERAPY , in her October 1995
    letter to VA. R. at 545. (The Court notes that, curiously, this item of evidence is not one of the
    items listed in her brief as evidence not considered by the BVA, notwithstanding that the BVA in
    fact did not address this evidence. See Br. at 4.) She argues that that treatise evidence, coupled with
    the medical evidence of the medications that her husband was taking prior to his death, constitutes
    plausible medical evidence of a nexus between the medications that he took for his service-
    connected PTSD and the cerebrohemmorhage that caused his death. Br. at 14-16.
    This Court has previously held that, in order to establish a well-grounded service-connection
    claim by means of a medical treatise, the treatise evidence must "not simply provide speculative
    generic statements not relevant to the veteran's claim". Wallin v. West, 
    11 Vet.App. 509
    , 514 (1998).
    10
    Instead, the treatise evidence, "standing alone", must discuss "generic relationships with a degree of
    certainty such that, under the facts of a specific case, there is at least plausible causality based upon
    objective facts rather than on an unsubstantiated lay medical opinion." 
    Ibid.
     (citing Sacks v. West,
    
    11 Vet.App. 314
    , 317 (1998)); see also Libertine v. Brown, 
    9 Vet.App. 521
    , 523 (1996) (medical
    treatise evidence must demonstrate connection between service incurrence and present injury or
    condition); Beausoleil v. Brown, 
    8 Vet.App. 459
    , 463 (1996) ("generic statement about the
    possibility of a link between chest trauma and restrictive lung disease . . . [is] too general and
    inconclusive to make the claim well grounded"). But see Mattern v. West, 
    12 Vet.App. 222
    , 227
    (1999) ("[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic
    information in a medical journal or treatise 'is too general and inconclusive' to well ground a claim"
    (quoting Sacks, supra).
    The Federal Circuit in Hensley v. West, in considering the use of treatise evidence to support
    the medical-nexus requirement of a well-grounded claim, stated: "A veteran with a competent
    medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish
    the required nexus; in an appropriate case it should not be necessary to obtain the services of medical
    personnel to show how the treatise applies to his case." Hensley, 
    212 F.3d at
    1265 (citing Wallin,
    supra). The Federal Circuit then held that on remand that treatise evidence "should be evaluated to
    see if it supports a nexus . . . sufficient to meet the low threshold of the well[-]grounded claim
    requirement." Ibid.
    In the instant appeal, the Board did not address in any manner the treatise evidence referenced
    by the appellant in her October 1995 letter to VA. See R. at 9-21 (BVA decision on appeal). In fact,
    the Board stated that the appellant's submissions to VA consisted of "lay assertions" and that she had
    "not presented any competent medical evidence which links the veteran's fatal cerebrovascular
    accident to a period of service or to his service-connected PTSD or treatment therefore". R. at 11
    (emphasis added). Thus, it appears that the Board failed even to consider the appellant's citation to
    a medical treatise. In the past the Court has addressed such evidence in the first instance. See, e.g.,
    Wallin and Libertine, both supra. However, in view of the Federal Circuit's instruction to the Court
    in Hensley to "remand the case to the BVA so it can reevaluate whether Mr. Hensley has stated a
    well[-]grounded claim", Hensley, 
    212 F.3d at 1265
    , the Court holds that an "evaluat[ion]" of treatise
    11
    evidence should be made in the first instance by the BVA. Thus when, as here, the Board fails to
    make any findings whatsoever as to medical-treatise evidence cited by an appellant, the Court will
    vacate the Board's decision and remand for the Board to "evaluate[ that evidence] to see if it supports
    a nexus . . . sufficient to meet the low threshold of the well[-]grounded claim requirement." Hensley,
    
    212 F.3d at 1265
    ; see also Beck, supra (emphasizing the low threshold of well groundedness).
    3. Remaining Arguments Set Forth in Appellant's Brief. Because we have decided that this
    DIC claim must be remanded for resolution of the question of service connection for the cause of
    death in view of the above-discussed medical-treatise evidence, we need not address in detail the
    remaining arguments set forth in the appellant's brief. We note, however, that a panel of the Court
    has no power to overrule the Federal Circuit's opinion in Epps, 
    126 F.3d 1464
    . Br. at 9; see
    McQueen v. West, 
    13 Vet.App. 237
    , 242-43 (1999) ("[t]his panel is bound by the opinion of the . . .
    Federal Circuit"); see also Schroeder v. West, 
    12 Vet.App. 184
     (1999) (en banc order) (recognizing
    that Federal Circuit in Epps "expressly rejected" virtually identical argument to that raised here "and
    that that case is binding on this Court"), overruled on other grounds, Schroeder v. West, 
    212 F.3d 1265
    , 1271 (Fed. Cir. 2000) (specifically not considering this Court's disposition of the
    appellant's arguments regarding Epps). (The Court is aware that the Federal Circuit appears to be
    reexamining Epps, by virtue of an en banc unpublished order that it issued in Brock v. Gober,
    No. 98-7037 (Fed. Cir. Aug 22, 2000); however, Epps continues to bind us unless and until it is
    overruled. See Tobler v. Derwinski, 
    2 Vet.App. 8
    , 14 (1991).) Likewise, a panel may not issue a
    decision that the VA ADJUDICATION PROCEDURE MANUAL, M21-1, provisions regarding the duty
    to assist prior to the submission of a well-grounded claim are binding on VA, because that issue has
    already been decided to the contrary by Morton v. West, 
    12 Vet.App. 477
     (1999), en banc review
    denied, 
    13 Vet.App. 205
     (1999), appeal dismissed and matter remanded sub nom. Morton v. Gober,
    No. 99-7191 (Fed. Cir. Aug. 17, 2000) (remanding to this Court for determination whether to vacate
    its decision in Morton v. West). See Bethea v. Derwinski, 
    2 Vet.App. 252
    , 254 (1992) (decision by
    panel of this Court is binding on future panels because "[i]t is in this way we assure consistency of
    our decisions"); Tobler, supra; cf. Schroeder, 
    212 F.3d at 1271
     (recognizing that the Court
    "addressed this issue" in Morton). But cf. McCormick v. West, __ Vet.App. ___, ___, No. 98-48,
    
    2000 WL 1173791
    , at *7 (Aug. 18, 2000) (distinguishing Morton in cases where VA has failed to
    12
    obtain SMRs or VA medical records prior to receiving well-grounded claims). If the Morton opinion
    is vacated by this Court in view of Mr. Morton's having died while the case was on appeal to the
    Federal Circuit, see Morton v. Gober, 
    supra,
     the appellant is free to raise these arguments to the
    Board and to this Court if necessary.
    The Court also notes the appellant's contention that she has been deprived of what she refers
    to in her brief as "administrative due process". Br. at 5. The Court finds it difficult to understand
    this contention. She argues that "[s]he did not have notice that" the issue whether the veteran had
    suffered from service-connected hypertension and cerebrovascular disease "would ultimately decide
    the merits of her claim for service connection for the cause of the veteran's death" (Br. at 7-8), and,
    in turn, that "[s]he did not have notice that she should present evidence and argument on th[os]e
    issue[s]". Br. at 8. She adds that the Board did not consider whether its addressing those two
    matters without notification to her had resulted in prejudice to her. 
    Ibid.
     (citing Bernard v. Brown,
    
    4 Vet.App. 384
    , 393-93 (1993) ("several statutory and regulatory provisions establish extensive
    procedural requirements to ensure a claimant's rights to full and fair assistance and adjudication in
    the VA claims adjudication process" and VA claimants must be afforded the "full benefits of these
    procedural safeguards" in those provisions). In Sutton v. Brown, the Court applied Bernard, supra,
    as follows:
    [W]hen the Board addresses in its decision a question that has not been addressed by
    the RO, it must consider (1) whether the claimant has been given both adequate
    notice of the need to submit evidence or argument on that question and an
    opportunity to submit such evidence and argument and to address that question at a
    hearing, and (2) whether, if such notice has not been provided, the claimant has been
    prejudiced thereby . . . .
    Sutton, 
    9 Vet.App. 553
    , 564 (1996) (emphasis added) (citing Bernard, 4 Vet.App. at 394)).
    As to that part of her argument regarding hypertension, the appellant is incorrect that the
    matter of "service connection for hypertension" was an issue upon which the BVA "ultimately
    decide[d] the merits of her claim". Br. at 8. The BVA did not address in its decision the matter of
    service connection for hypertension and did not, therefore, resolve this appeal based on that matter.
    See R. at 9-11. The Board's conclusion was that "[b]ecause the appellant has not presented any
    competent medical evidence which links the veteran's fatal cerebrovascular accident to [the] period
    of service or to his service-connected PTSD or treatment therefor[ ], or residuals of trenchfoot, her
    13
    claim for the cause of the veteran's death is not well grounded and must be denied." R. at 11. Nor
    should the BVA have addressed the matter of hypertension. Throughout the adjudication of this
    claim, the appellant has consistently asserted that the veteran's death was due to a fall that caused
    trauma to the veteran's brain (R. at 445-48, 463, 474, 497, 545); at no time has she asserted that
    hypertension was incurred in service and contributed to the veteran's death. Although she submitted
    in October 1995 a statement listing all of the medications that the veteran had been taking prior to
    his death, including blood-pressure medication, and asserted that his death had been due in part to
    those medications, she specifically referred to, as the basis for her claim, the "meds [that] were given
    because of service[-]connected disability of PTSD to control him." R. at 546. Thus, the appellant's
    contention is unfounded that the matter of service connection for hypertension was unfairly decided
    -- or decided at all -- by the BVA.
    The appellant also contends that she was not on notice that the Board would determine that
    "the record is devoid of any competent medical evidence relating the onset of cerebral vascular
    disease and the fatal cerebral vascular accident to [his] military service" and that the veteran's SMRs
    "d[id] not show that he had cerebrovascular . . . problems". R. at 11. In fact, the appellant was
    notified repeatedly by the RO that it had considered the cause of the veteran's death to have been a
    cerebrovascular accident and that that condition was not service connected and did not show up in
    the veteran's SMRs (R. at 450, 471, 539). Hence, the facts of this case do not bear out her assertion
    that the BVA addressed an issue not addressed by the RO.
    4. BVA's Reconsideration Procedure. In a supplemental brief filed on October 20, 1999,
    the appellant urges this Court to vacate an April 22, 1999, decision of the BVA Vice Chairman to
    deny her motion for reconsideration of the BVA decision on appeal. Supplemental (Suppl.) Br. at
    Exhibit 1. Although this matter appears to be mooted by the Court's decision to vacate the BVA
    decision for which the BVA Vice Chairman denied reconsideration, the Court will briefly address
    this argument.
    The Court has jurisdiction over the Vice Chairman's denial of his motion for BVA
    reconsideration, based on Mayer v. Brown, 
    37 F.3d 618
     (Fed. Cir. 1994) (when this Court has
    jurisdiction over underlying BVA decision, it also has jurisdiction over appeal of denial of motion
    to reconsider that decision). The Secretary does not argue to the contrary. See generally Secretary's
    14
    November 19, 1999, Response to Appellant's Suppl. Br. The appellant's challenge is premised upon
    her mistaken interpretation of a precedential opinion of VA's Office of General Counsel. Suppl. Br.
    at 8-9 (discussing VA Gen. Coun. Prec. 89-90 (Aug. 27, 1990) [hereinafter G.C. Prec. 89-90]). The
    appellant argues that, pursuant to G.C. Prec. 89-90, the Secretary may not utilize the "obvious error"
    standard in determining whether or not to grant reconsideration of a BVA decision, and thus that
    the BVA Vice Chairman erred in this case by applying such a standard.
    The VA General Counsel's opinion framed the "QUESTION PRESENTED" therein as
    follows: "When . . . the Chairman of the Board . . . orders reconsideration . . . , what type of review
    is to be conducted by the reconsideration section[?]" The opinion also "HELD" that, after
    reconsideration has been granted, "[t]he reconsideration section then sits in the same position as
    would the Board panel initially deciding the appeal, i.e., it should employ the same standard of
    review". Thus, by its own terms, G.C. Prec. 89-90 applies only after reconsideration has been
    granted and does not forbid the BVA Chairman from applying the "obvious error" standard as to
    whether to grant a motion for reconsideration. The fact that the Secretary has retained the concept
    of "obvious error" in his regulation regarding when "[r]econsideration of an appellate decision may
    be accorded" is a further indication that G.C. Prec. 89-90 did not intend the result urged by the
    appellant in this case. 
    38 C.F.R. § 20.1000
    (a) (1999) (stating that reconsideration of BVA decision
    is to be accorded, inter alia, "[u]pon allegation of obvious error of fact or law"). The Court expresses
    no opinion as to the validity of G.C. Prec. 89-90, which is not challenged by the appellant in this
    case.
    The Court notes that neither party has objected to consideration by this Court in the first
    instance of the documents attached to the appellant's Supplemental Brief as exhibits 1-3,
    notwithstanding that those documents postdate the BVA decision here on appeal. The Court is
    precluded by statute from including in the record on appeal (ROA) and generally from considering
    any material that was not contained in the "record of proceedings before the Secretary and the
    Board". 
    38 U.S.C. § 7252
    (b); see also Wilhoite v. West, 
    11 Vet.App. 251
    , 252 (1998) (per curiam
    order); Bell v. Derwinski, 
    2 Vet.App. 611
    , 612-13 (1992) (per curiam order); Rogozinski
    v. Derwinski, 
    1 Vet.App. 19
    , 20 (1990) (review in Court shall be on record of proceedings before
    Secretary and Board). However, the Court has held that it may review documents relevant to the
    15
    question whether the Court has jurisdiction over a motion for BVA reconsideration, and that such
    documents "should be submitted separately in the form of a Supplemental ROA." Bennett v. Brown,
    
    10 Vet.App. 178
    , 181 (1997). In this case, the Court does not need to review the appended
    documents in order to conclude that it has jurisdiction over the Vice Chairman's decision not to grant
    reconsideration. See Mayer, 
    supra.
     However, we reiterate that, just as in Bennett, supra, it is
    preferable that such documents "be submitted separately in the form of a Supplemental ROA", and
    thus that they be preceded by a counter designation of the record (as well as, in appropriate cases
    such as this one, a motion to permit the filing out-of-time of the counter designation), so as to afford
    the opposing party the benefit of the Court's procedural rules regarding such matters. See U.S. VET .
    APP . R. 10(b), (c), 11(b). In view of the lack of opposition by the Secretary to the Court's
    consideration (which we need to do in this case only for the purposes of verification of the filing and
    denial of a motion for BVA reconsideration) of the documents appended to the appellant's
    supplemental brief, we will, nonetheless, not delay the resolution of this appeal by requiring further
    procedural filings in this case.
    B. 
    38 U.S.C. § 1318
     DIC Claim
    In addition to payment of DIC pursuant to 
    38 U.S.C. § 1310
     when a veteran dies due to a
    service-connected disability, see Darby and Hanna, both supra, DIC benefits are payable "in the
    same manner as if the veteran's death was service connected" on three other theories provided for
    in chapter 13 of title 38, U.S. Code. Specifically, pursuant to 
    38 U.S.C. § 1318
    (b), the surviving
    spouse of a veteran who dies from an injury or disease that is not service connected may receive DIC
    under certain specified circumstances. In Cole v. West, the Court described these three other theories
    as follows:
    [U]nder the umbrella of a general section 1318 DIC claim, a VA claimant
    may receive section 1318 DIC under any one of the three following theories: (1) If
    the veteran was in actual receipt of compensation at a total disability rating for 10
    consecutive years preceding death, see 
    38 U.S.C. § 1318
    (b)(1); (2) if the veteran
    would have been entitled to receive such compensation but for CUE in previous final
    RO decisions and certain previous final BVA decisions . . . ; or (3) if, on
    consideration of the "evidence in the veteran's claims file or VA custody prior to the
    veteran's death and the law then or subsequently made retroactively applicable", the
    veteran hypothetically would have been entitled to receive a total disability rating for
    a period or periods of time, when added to any period during which the veteran
    16
    actually held such a rating, that would provide such a rating for at least the 10 years
    immediately preceding the veteran's death, see Carpenter [(Angeline) v. West,
    
    11 Vet.App. 140
    , 147 (1998)]; Green[ v. Brown], 10 Vet.App. [111,] 118 [(1997)].
    Cole, 
    13 Vet.App. 268
    , 274 (1999); see also 
    38 C.F.R. § 3.22
    (a) (1999); DIC Benefits for Survivors
    of Certain Veterans Rated Totally Disabled at Time of Death, 
    65 Fed. Reg. 3,388
     (2000) (amending
    § 3.22(a)); Marso v. West, 
    13 Vet.App. 260
    , 264-67 (1999); Wingo v. West, 
    11 Vet.App. 307
    , 309-12
    (1998). Facially, theory (1) in the above quotation does not apply here.
    In Carpenter (Angeline), the Court quoted with approval a VA issuance that directed: "'In
    all cases in which service connection for cause of death is denied and the veteran has a totally
    disabling service[-]connected condition at the time of his death the issue of entitlement under
    38 U.S.C. § [1318] must be considered'". Carpenter (Angeline), supra (emphasis added) (quoting
    VA DVB Circular 21-78-10, Implementation of Public Law 95-479, Change 1, p. 4 amendment to
    ¶ 11.d. (Nov. 14, 1978)). The Court concluded that a section 1318 "entitled to receive" claim was
    "intrinsic" to a general section 1318 claim. In the instant case, the veteran was rated 100% disabled
    at the time of his death (R. at 12, 357-58); therefore, VA has been correct in this case, insofar as it
    followed the requirements of the DVB Circular cited with approval in Carpenter (Angeline), in
    consistently adjudicating the appellant's DIC claim under section 1318 after VA had determined that
    no DIC award could be made pursuant to section 1310 (see, e.g., R. at 450-52 (January 1995 denial
    of appellant's January 1995 DIC claim under sections 1310 and 1318)). However, for the following
    reasons, the Court will remand as to the section 1318 DIC claim as well.
    First, the Court notes that just as an "entitled to receive" argument is "an intrinsic part of" a
    DIC claim adjudicated under section 1318, so, too, are all section 1318 bases for DIC an intrinsic
    part of a DIC claim in those "cases in which service connection for cause of death is denied and the
    veteran has a totally disabling service[-]connected condition at the time of his death". Carpenter
    (Angeline), supra. In this case, the Board has already considered the appellant's claim in the context
    of section 1318, apparently for the very reasons set forth above in this paragraph. However, because
    the Court has found error in the Board's adjudication of the DIC claim pursuant to section 1310 and
    because the veteran had a totally disabling service-connected disability at the time of his death, the
    Board will be required, if it rejects the section 1310 basis for DIC, to consider the appellant's DIC
    claim on the basis of section 1318.
    17
    Moreover, the Federal Circuit recently held in Schroeder v. West, as to a claim for service
    connection, that "once a veteran has properly made out a well-grounded claim for a current disability
    as a result of a specific in-service occurrence or aggravation of a disease or injury, the agency's duty
    to assist pursuant to section 5107(a) . . . attaches to the investigation of all possible in-service causes
    of that current disability". Schroeder, 
    212 F.3d at 1271
    . The Federal Circuit then vacated an order
    of this Court affirming a BVA decision that the veteran in that case had not presented a well-
    grounded direct-service-connection claim where the Court had also remanded the BVA's denial of
    that service-connection claim for consideration of a regulatory-presumption basis for service
    connection. 
    Id. at 1268, 1271-72
    . In other words, where one theory or basis for the allowance of
    a service-connection claim is well grounded, all possible theories for service-connection must be
    considered during the merits adjudication. The Court sees no material distinction between the
    service-connection claim at issue in Schroeder and the DIC claim at issue in the instant case. Nor
    did the appellant at any time expressly limit her DIC claim to entitlement pursuant to section 1310
    or any other particular legal avenue of relief. Indeed, from the very outset of the adjudication of the
    appellant's DIC claim, the RO applied section 1318 as well as section 1310.
    The Court's application of Schroeder to DIC claims is consistent with the principle that "VA
    is required to apply all relevant law in adjudicating the claim even though not raised by the
    appellant". Norris (Robert) v. West, 
    12 Vet.App. 413
    , 417 (1999); cf. 
    38 U.S.C. § 7104
    (d)(1) (BVA
    to address in its decision "all material issues of . . . law"). Hence, the Court holds, in accordance
    with Schroeder and Carpenter (Angeline), both supra, that because the appellant's DIC claim was
    erroneously denied by the BVA as not well grounded under section 1310 and the veteran had been
    rated as 100% service-connected disabled at the time of his death, our remand of that erroneously
    denied DIC claim carries with it a requirement that the Board reconsider the DIC claim under section
    1318 if it is found to be well grounded on any DIC theory. Moreover, should the appellant, on
    remand, submit new argument pertinent to the question of an award of DIC pursuant to section 1318,
    the Board would be required to resolve such additional argument. See Kutscherousky v. West,
    
    12 Vet.App. 369
    , 372-73 (1999) (per curiam order) (holding that appellants are free to submit
    additional evidence and argument on remanded claims).
    18
    Of course, if further consideration of section 1318 is required on remand, such consideration
    must be undertaken in accordance with the Court's caselaw regarding that statutory provision. See
    Cole, Marso, Wingo, Carpenter (Angeline), and Green, all supra. In that regard, the Court notes the
    requirement that a DIC claimant who would seek to establish entitlement pursuant to a section 1318
    CUE claim
    must provide at least the following: The date or approximate date of the decision
    sought to be attacked collaterally, or otherwise provide sufficient detail so as to
    identify clearly the subject prior decision, and must indicate how, based on the
    evidence of record and the law at the time of the decision being attacked, the veteran
    would have been entitled to have prevailed so as to have been receiving a total
    disability rating for ten years immediately preceding the veteran's death. See
    Crippen[ v. Brown, 
    9 Vet.App. 412
    , 420 (1996),] and Fugo[v. Brown, 
    6 Vet.App. 40
    ,
    44 (1993)].
    Cole, 13 Vet.App. at 276-77. In that connection, the implicit restriction in 
    38 C.F.R. § 20.1106
    (1999) (regarding effect of prior VA decisions as to veteran in "issues involved in a survivor's claim
    for death benefits") would apply in this case because the appellant's claim was filed after the March
    1992 effective date of that regulation and thus, because in this case the RO's May 1989 decision that
    denied a 100% rating for the veteran's service-connected PTSD (R. at 240-41) constituted "a prior
    final VA determination [that] had denied a veteran a total disability rating, so that the veteran had
    not been rated totally disabled for 10 continuous years prior to his or her death," the appellant must,
    at a minimum, "demonstrate CUE in th[at] prior VA determination in order to establish eligibility
    under section 1318(b)(1)". Marso, 13 Vet.App. at 266. If the appellant should prevail on such a
    CUE claim as to the 1989 RO decision, she would then still have to demonstrate that a 100% rating
    should have been in effect from at least December 1984. In that regard, if there are no other final
    VA decisions that might prevent her from showing a 100% rating back to that date -- 10 years before
    the veteran's death -- she would still have recourse to the third possible section 1318 basis for DIC
    discussed in Cole, 13 Vet.App. at 174, that is, whether "the veteran hypothetically would have been
    entitled to receive a total disability rating for a period or periods of time, when added to any period
    during which the veteran actually held such a rating, that would provide such a rating for at least the
    10 years immediately preceding the veteran's death". That is because the recent amendment to 
    38 C.F.R. § 3.22
    (a), assuming that it was validly promulgated and effective upon its publication on
    19
    January 21, 2000 (notwithstanding that it was promulgated without a notice-and-comment period),
    see 
    65 Fed. Reg. 3,388
    , which defined "entitled to receive" so as to exclude the "hypothetically"
    entitled-to-receive section 1318(b) basis recognized in Wingo, Green, and Carpenter (Angeline), all
    supra; see also Cole and Marso, both supra, could not, under Karnas v. Derwinski, be applied to this
    case if to do so would lead to a less advantageous result to the appellant. See Karnas, 
    1 Vet.App. 308
    , 313 (1991) ("where the law or regulation changes after a claim has been filed or reopened but
    before the administrative or judicial appeal process has been concluded, the version most favorable
    to the appellant should apply unless Congress provided otherwise or permitted the [Secretary] to do
    otherwise and the Secretary did so").
    III. Conclusion
    Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties,
    the Court vacates the October 15, 1996, BVA decision and remands the matter for expeditious
    further development and issuance of a readjudicated decision supported by an adequate statement
    of reasons or bases, see 
    38 U.S.C. §§ 1310
    , 1318, 5107, 7104(a), (d)(1); 
    38 C.F.R. §§ 3.22
    (a),
    20.1106; Fletcher v. Derwinski, 
    1 Vet.App. 394
    , 397 (1991) -- all consistent with this opinion and
    in accordance with section 302 of the Veterans' Benefits Improvements Act, Pub. L. No. 103-446,
    § 302, 
    108 Stat. 4645
    , 4658 (1994) (found at 
    38 U.S.C. § 5101
     note) (requiring Secretary to provide
    for "expeditious treatment" for claims remanded by BVA or the Court). See Allday, 7 Vet.App. at
    533-34. On remand, the appellant will be free to submit additional evidence and argument on the
    remanded claim in accordance with Kutscherousky, 12 Vet.App. at 372-73 (per curiam order). The
    Court notes that a remand by this Court and by the Board confers on an appellant the right to VA
    compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to
    ensure compliance with those terms. See Stegall v. West, 
    11 Vet.App. 268
    , 271 (1998). A final
    decision by the Board following the remand herein ordered will constitute a new decision that, if
    adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court
    not later than 120 days after the date on which notice of the new Board final decision is mailed to
    the appellant. See Marsh v. West, 
    11 Vet.App. 468
    , 472 (1998).
    VACATED AND REMANDED.
    20