**UNITED STATES COURT OF VETERANS APPEALS**

No. 94-764

[Dorothy M. Moffitt, Appellant]{.smallcaps},

v\.

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Argued April 25, 1996 Decided April 29, 1997 )

*Benjamin J. Kaufman* for the appellant.

*Rosalind Eager*, with whom *Mary Lou Keener,* General Counsel; *Ron
Garvin*, Assistant General Counsel; and *Thomas A. McLaughlin*, Deputy
Assistant General Counsel*,* were on the pleadings, for the appellee.

Before HOLDAWAY, IVERS, and STEINBERG, *Judges*.

STEINBERG, *Judge*: The appellant, widow of World War II combat veteran
Douglas Moffitt, appeals a July 1, 1994, Board of Veterans\' Appeals
(BVA or Board) decision denying (1) reopening as to a claim for accrued
benefits based on a claim for a total disability rating due to
individual unemployability (TDIU); (2) an award of dependency and
indemnity compensation (DIC) based on asserted service connection for
the cause of the veteran\'s death, under 38 U.S.C. § 1310, after having
reopened the claim; (3) burial benefits; and (4) an effective date
earlier than May 1, 1988, for an award of DIC based on 38 U.S.C. § 1151.
Record (R.) at 4, 16-17. For the reasons that follow, the Court will
affirm in part and vacate in part the Board decision and remand certain
matters to the Board for readjudication.

**I. Background**

The veteran had active military service from July 1944 to May 1946. R.
at 21, 307. In January 1945, he was wounded in action by a
high-explosive shell fragment and incurred injuries to his abdomen,
perineum, and scrotum, and perforating wounds of the urinary bladder,
ilium, urethra, and sigmoid colon. R. at 21, 23-24, 31, 177. While in
service, he underwent extensive surgery and prolonged convalescence. R.
at 21, 24-25, 234. Service medical records (SMRs) included a March 1945
x-ray report finding that \"\[a\] pyriform density 1 cm. in length \[was
lying\] in the region of the middle major calyx of the left kidney\"
that \"might well be renal calculus\" (R. at 26); and an August 1945
x-ray report noting that \"kidney shadows are normal in size, shape, and
position\" and that there were \"moderately enlarged and blunted minor
calyces on the right side\" of the right ureter (R. at 32). (Calyx or
calix is a \"flower shaped or funnel-shaped structure; specifically one
of the branches or recesses of the pelvis of the kidney into which the
orifices of the malpighian renal pyramids project\", [Stedman\'s Medical
Dictionary]{.smallcaps} 263, 262 (26th ed. 1995).) The SMRs also
included February and May 1945 physical examination reports noting a
heart that was not enlarged and that had regular rhythm with no murmurs
(R. at 141, 232); and March and September 1945 chest x-ray reports
containing a diagnosis of a \"\[h\]ealthy \[c\]hest\" (R. at 149) and
noting \"no evidence of pulmonary or cardiac disease\" (R. at 33). An
April 1946 x-ray report of the veteran\'s chest noted: \"Old thickened
pleura in the left costophrenic sulcus of no present clinical
importance. Otherwise normal heart, lungs\[,\] and bony thorax.\" R. at
262. He was medically discharged in May 1946. R. at 21.

In February 1947, a Veterans\' Administration (now Department of
Veterans Affairs) (VA) physical examination report noted normal
cardiovascular and respiratory systems. R. at 310, 313. The examiner
described the veteran\'s residuals as: \"Well-healed \[gunshot wound
(GSW)\] scars of perineum. Well-healed post-operative suprapubic
cystostomy, colostomy (right para-umbilical left lumbar (removal of left
ureteral calculus, lower mid-rectus (repair of bladder) scars\[)\].
Well-healed sacral ulcer (scar of pressure sore).\" R. at 316. The
diagnosis was \"\[i\]ntestinal obstruction intermittent partial based on
history, \[seco\]ndary to GSW abdomen\" and \"\[c\]icatrices, healed,
post traumatic \[and\] post surgical \[seco\]ndary to GSW abdomen\". R.
at 317.

In October 1947, a VA regional office (RO) granted service connection
for resection of the ileum, with partial obstruction; resection of the
large bowel, with polyposis, with partial obstruction; GSW, abdominal
wall, muscle group XIX; impotence with loss of the right testicle,
analogous to loss of both testicles; laceration of the bladder, urinary;
laceration of the urethra; nephrolithiasis, left. R. at 322.
(Nephrolithiasis is \"a condition marked by presence of renal calculi\",
[Dorland\'s Illustrated Medical Dictionary]{.smallcaps} 1109 (28th ed.
1994).) The injuries were assigned a combined disability rating of 100%
from May 1946. R. at 322, 325. On the basis of an April 1953 VA
examination, the combined rating was reduced to 60%, effective March
1953. R. at 324-28. The veteran was also awarded special monthly
compensation on account of anatomical loss of a creative organ. R. at
325, 328. These ratings continued until his death.

In September 1979, the veteran filed a TDIU claim. *See* R. at 333. A
January 1980 RO decision denied his TDIU claim. R. at 333. In June 1982,
he was admitted to the VA Medical Center (VAMC) in Tucson, Arizona, with
a two-day history of fevers and chills and was diagnosed with
\"\[r\]ight upper lobe infiltrate\" of the lungs. R. at 359. At that
time, his blood pressure was 140/90. *Ibid*. He was also diagnosed with,
inter alia, chronic pain syndrome, status post GSW, and increased
prothrombin time. *Ibid*. (Prothrombin is the substance in the blood
essential to the clotting process and, hence, to the maintenance of
normal hemostasis, \"a protein present in the plasma that, in
theoretical hemotology, is converted to thrombin\",
[Dorland\'s]{.smallcaps} at 1371, 605.) A cardiovascular examination
showed \"the PMI \[point of maximal impulse \-- heartbeat\] to not be
appreciable\", and there was \"a faint summation gallop present with no
murmurs or rubs\". R. at 357, 359. The veteran left the hospital against
medical advice. R. at 358.

In October 1982, he was hospitalized at the VAMC in Loma Linda,
California, for complaints of low back pain and bilateral leg pain. R.
at 360. Present conditions included bronchitis and asthma, and reported
history included \"numerous bouts of pneumonia\", \"four myocardial
infarctions in the early part of 1982 with angina\", \"calcified left
kidney with multiple small stones\", multiple bladder infections, and
phlebitis. R. at 361. At that time, he denied any high blood pressure
and admitted to swelling of his ankles and having palpitations. R. at
362. Examination of the lungs revealed \"\[d\]ecreased breath sounds at
the bases bilaterally\" with slight inspiratory and expiratory wheezes.
R. at 363. With respect to his cardiovascular system, he had
\"\[t\]achycardic with an irregular rhythm\" and no murmurs. *Ibid*. The
reported impression was, inter alia, history of heart disease and
calcified left kidney. R. at 364. While hospitalized, he experienced
increased shortness of breath and diminishing mental status. R. at
372-73.

On November 11, 1982, he died while in that VAMC. R. at 367, 373, 375.
An autopsy protocol reported the following causes of death: \"Congestive
heart failure, weeks, due to myocardial infarction, weeks, due to
coronary arteriosclerosis, years. Contributing \[c\]ause: Pulmonary
emphysema and cardiac hypertrophy.\" R. at 367-71. Examination of the
left kidney showed \"multiple indented irregular scars at both poles,
slightly greater in the upper pole\" with \"no evidence of
hydronephrosis\", and \"no renal calculi\". R. at 369. (Hydronephrosis
is the \"distention of the pelvis and calices of the kidney with urine,
as a result of obstruction of the ureter\", [Dorland\'s]{.smallcaps} at
785.) The autopsy report noted that the ureters \"are unobstructed in
their course to the bladder which contains approximately 50cc. of
urine.\" *Ibid*. Microscopic examination of the kidneys revealed
\"moderate renal arteriosclerosis with prominent \[illegible\]
scarring\". Additionally, \"large areas of tubular atrophy and
accompanying chronic inflammation are present in the interstitial
regions. Glomeruli are focally senescent; however, those intact, show no
diagnostic abnormalities.\" R. at 370. (Glomeruli, plural of glomerulus,
which is a tuft or cluster, as one composed of blood vessels or nerve
fibers, [Dorland\'s]{.smallcaps} at 700, 701.)

In April 1983, the appellant filed an application for DIC under 38
U.S.C. § 1310 based on the veteran\'s death from service-connected
disability \[hereinafter § 1310 DIC claim\] and provided a copy of the
veteran\'s death certificate. R. at 384-90. That same month, the RO
denied that § 1310 DIC claim on the ground that the evidence showed \"no
heart disease in service or within presumpti\[on\] period\" and because
the veteran\'s service-connected disabilities were \"not shown to have
hastened or contributed to \[his\] death.\" R. at 392. In November 1983,
the appellant filed another DIC claim, this one under 38 U.S.C. § 351
(now § 1151) based on assertions that VA\'s treatment of the veteran had
hastened his death \[hereinafter § 351 (or § 1151) DIC claim\], and she
contended that the veteran should have received BVA appellate
consideration of his 1979 TDIU claim denied by the RO in January 1980.
*See* R. at 399. A May 1983 letter from the Director of the VAMC in San
Diego, California, to the San Diego VA District Counsel (D. Couns.)
office, referred to an administrative tort claim by the appellant for
the alleged wrongful death of the veteran; indicated that a letter dated
April 21, 1983, from the D. Couns. office was referred to Dr. Shure,
Chief of the Pulmonary Section at the San Diego VAMC, and Dr. LeWinter,
Acting Chief of Cardiology there; and enclosed responses from the two VA
physicians. Supplemental (Suppl.) R. at 1-5. (The April 21, 1983, letter
is not included in the record on appeal (ROA).) Dr. Shure\'s report
described the condition and treatment of the veteran at the Loma Linda
VAMC, and answered questions apparently posed in the D. Couns. office\'s
April 1983 letter, including whether the drugs administered at the VAMC
could have caused respiratory depression, whether VA\'s multiple
transfers of the veteran in and out of the pain and pulmonary units were
appropriate, and whether VA\'s treatment of his congestive heart failure
was adequate. Suppl. R. at 2-3. Dr. Shure concluded by stating that the
veteran\'s congestive heart failure \"may not have been\" appropriately
treated and that the \"steroids probably should have been discontinued
and his pain medications reduced or stopped earlier although the serum
drug levels do not support their role in his demise\". Suppl. R. at 3.
Dr. LeWinter concurred with Dr. Shure, adding that he could not \"give a
definite answer\" as to whether the treatment given to the veteran for
his heart was appropriate and noting: \"Lacking invasive information, it
becomes a matter of extraordinary \[sic\] difficult clinical judgment as
to how important heart failure is in a patient such as this, and in view
of his multiple other problems, how exactly to treat it.\" Suppl. R. at
5.

A December 1983 RO decision denied § 351 DIC. R. at 394-95. The
appellant appealed this decision. *See* R. at 397-402. In June 1984, the
Board remanded the case for additional development. *See* R. at 406. On
remand, the RO in February 1985 again denied this § 351 claim and also
denied a TDIU claim. *Ibid*. (The ROA does not contain the February 1985
RO decision; apparently the TDIU claim refers to an accrued-benefits
claim under 38 U.S.C. § 5121.)

In October 1986, the D. Couns. office provided a litigation status
report to the VA General Counsel\'s office in Washington, D.C.,
attaching pleadings that showed that the appellant\'s case against the
United States, under the Federal Tort Claims Act, was settled for
\$95,000. Suppl. R. at 6-14. In December 1986, the Board again remanded
the § 351 DIC claim for further development, and the RO denied that
claim after considering the two VA physicians\' May 1983 opinions. *See*
R. at 409, 442. In a December 1987 decision, the Board denied the § 351
DIC claim, finding that the \"veteran\'s death was irrespective of the
treatment provided and any factor arising from the treatment was a
foreseeable result of approved treatment\" and (citing, inter alia, 38
C.F.R. § 3.358(c)(3)) concluding that the \"veteran\'s death was neither
an accident resulting from \[VA\] medical or surgical care nor the
result of carelessness, negligence, lack of proper skill, error in
judgment, or other instance of indicated fault on the part of \[VA\]\".
R. at 419-20.

In a separate December 1987 decision, the Board denied the appellant\'s
claim for accrued benefits based on TDIU due to service-connected
disabilities. R. at 421-29. The Board found that the veteran\'s
service-connected disabilities were: Residuals of a partial small bowel
resection; residuals of an abdomen shell-fragment wound (SFW), involving
Muscle Group XIX; residuals of a right testicle removal; a bladder
laceration; laceration of the urethra; left nephrolithiasis; and
residuals of large bowel surgery. R. at 429.

In February 1989, the appellant attempted to reopen as to her § 351 DIC
claim and accrued-benefits TDIU claim. *See* R. at 481, 490. In March
1989, the RO denied those claims, finding no new and material evidence
warranting a reopening. R. at 481. That same month, she appealed the
March 1989 decision. R. at 486. A January 1990 letter from the D. Couns.
office to the VA General Counsel office in Washington, D.C., responded
to an inquiry as to whether the D. Couns. office had any medical opinion
that could be provided to the Board \"to assist them in evaluating the .
. . \[section\] 351 appeal\", and enclosed a copy of a medical opinion,
with the identity of the author deleted, that had formed the basis for a
settlement recommendation by the Assistant U.S. Attorney. R. at 493. The
enclosed medical opinion, dated January 28, 1986, noted that the
veteran\'s condition upon admission to the Loma Linda VAMC in October
1982 had included heart disease that \"was not insignificant\", and that
the veteran went home on a pass and had \"taken an overdose of Theodur
for his asthmatic bronchitis while he was out on pass\" and had returned
in \"dire straits\". R. at 494-95. The physician opined:

> The next catastrophe occurred on or about 11/2/82 involving a
> clear-cut fluid overload associated with the previous use of hypotonic
> saline solution intravenously. Interestingly, a urologist who
> consulted on the case on that date indicated there was nothing wrong
> with the kidneys and that it was the congestive heart failure that
> needed evaluation and treatment. Nevertheless, even though attention
> was given to the fluid balance with subsequent correction of
> electrolyte contents, no real attention was given to the problem of
> congestive heart failure and the underlying cardiac problem. . . . The
> occurrence of the infarction on or about 11/2/82 in association with
> the fluid overload would be consistent with what appears to have been
> found at the time of the autopsy. That is, the description at autopsy
> appears to be between one and two weeks\[\'\] duration.
>
> He did not have primary liver disease nor primary kidney disease that
> contributed to the fatal outcome. One kidney was scarred quite a bit
> but this contributed nothing to the outcome.
>
> For purposes of general guidance, the management of congestive heart
> failure, particularly in the face of subacute myocardial infarction,
> includes more aggressive digoxin to increase the efficiency of the
> remaining heart muscle, \[and\] the administration of lasix to get rid
> of fluid and reduce the load on the heart, \[and\] the administration
> of nasal oxygen and sedation. I find no evidence that lasix was
> administered past 11/3/82\[,\] and of course there is no evidence to
> indicate more critical attention to the \[veteran\'s\] serum digoxin
> level.

R. at 495-96.

In an April 1990 Board decision, the matter was remanded for the RO to
associate with the claims folder \"the [complete]{.underline} medical
records (not just summaries), to include all specialist\'s reports and
notes\" regarding the veteran\'s terminal hospitalization. R. at 499.
The records were then sent to the RO. R. at 502-761. Included among
these were handwritten notes dated November 1, 1982, that stated
impressions of \"Left renal stones with irregular decrease in renal
cortex, most likely due to chronic inflammation\" (*ibid*.) and
nephrolithiasis (R. at 542, 546). A renal echogram conducted at that
time revealed the following findings: \"There is irregularity of the
renal contour of the upper and lower poles consistent with scars from
chronic pyelonephritis. There are severe foci of calcification seen in
the left kidney compatible with stones. No cyst or mass is visualized in
the left kidney. The right kidney is normal.\" R. at 587.

In July 1990, the appellant filed a claim to reopen her § 1310 DIC
claim. *See* R. at 828. An August 1990 RO decision denied reopening as
to this claim and the accrued-benefits TDIU claim. *See* R. at 829. The
appellant and her sons gave sworn testimony before the RO in December
1990. R. at 767-806. A June 1991 Board decision found that the evidence
newly presented since the Board\'s December 1987 decision was new and
material and thus warranted reopening as to the appellant\'s § 351 DIC
claim; the Board decision awarded DIC. R. at 810-17. In July 1991, the
RO apparently continued the denial of her § 1310 DIC claim. *See* R. at
823.

As to burial benefits, in January 1983, the appellant had filed an
application for such benefits, attaching copies of her marriage
certificate and the veteran\'s death certificate. R. at 375, 377-79. A
February 1983 RO letter to the appellant informed her that further
information, including a \"receipted funeral bill\", was needed to
process her claim. R. at 382. In August 1986, the appellant inquired as
to the status of her claim. *See* R. at 433. The RO responded: \"Our
records indicate that your claim for \[b\]urial benefits was denied as
you did not provide the requested \[b\]urial receipts requested in 1983.
You had two years in which to file.\" R. at 433. In January 1987, the
appellant asserted to the RO that her application was timely filed and
provided copies of a card file from the Veterans of Foreign War (her
representative at the time), the funeral receipt, and a check for
payment of funeral expenses. R. at 432-37. In May 1989, the RO again
informed her that \"burial allowance may not be granted since the
requested evidence was not received within the time limit for payment\".
R. at 484. In July 1990, the appellant submitted another application,
which the RO denied in January 1991 as being untimely. *See* R. at 808,
838.

In July 1991, the appellant again sought reopening as to her
accrued-benefits TDIU claim. R. at 821. She stated that the veteran had
filed for TDIU in October 1979 and that this claim \"has never been
resolved\". *Ibid*. She asserted that the June 1984 BVA remand decision
had noted that an appellate decision was to be made on this claim but
that those instructions were never followed. *Ibid*. In August 1991, she
filed a Notice of Disagreement (NOD) as to an effective date of March
1989 apparently assigned by the RO as to its award of the § 351 DIC
claim, contending that the effective date should be that of her
husband\'s death in November 1982. R. at 823. In September 1991, the RO
notified the appellant that her § 351 DIC benefits had been awarded to
reflect that she had reopened her claim on April 29, 1988, and that her
award would thus be effective from May 1, 1988. Suppl. R. at 33.

She also filed an NOD as to the July 1991 RO denial of her § 1310 DIC
claim; she noted the following: That he had a \"history of urinary tract
infection to \[sic\] his surgery, left kidney incision in 1945, and was
taking medications for this problem up until he died. His bladder and
urethra were injured by shrapnel and rated service connected.\" R. at
823. She appealed as well the RO\'s January 1991 denial of burial
benefits. R. at 823, 842-43; *see* R. at 838.

In March 1992, the appellant and her sons gave sworn testimony before
the RO. R. at 845-909. The appellant testified under oath that in
September 1991 she had filed a claim for service connection for the
veteran\'s left-kidney condition and that she would like that claim to
be included in the accrued-benefits TDIU claim. R. at 848. She referred
to a January 8, 1992, letter she had written to Dr. Lu, Chief of General
Medical Section at the Loma Linda VAMC requesting further information
concerning the veteran\'s death. R. at 873-74. She testified that he had
responded in a February 28, 1992, letter that he had reviewed the
veteran\'s medical chart from October 13, 1982, through November 11,
1982, and had attempted to answer questions she had posed to him
concerning the effect of the veteran\'s kidney condition on his heart.
R. at 874-75. She testified that he had responded \"possibly\" in
response to her question whether patients with renal diseases are more
susceptible to infections; that he had stated that \"renal disease can
affect the heart\"; and that he had stated \"possibly\" in response to
the question whether \"patients who have renal, kidney disease\[ \] as
it progresses have dis\[t\]en\[t\]ion of the abdomen\" such as the
veteran had while hospitalized at the Loma Linda VAMC. She also stated
that he had said that an \"abdominal CAT SCAN was ordered to evaluate
\[the veteran\'s\] condition and we were awaiting for it to be
scheduled\" and that he had answered \"possibly\" in response to the
question whether renal insufficiency problems or drugs had caused the
veteran \"to get an electrolyte imbalance while he was hospitalized at
Loma Linda Hospital\". R. at 874-79. Apparently reading from his letter,
she testified that Dr. Lu had stated: \"In my opinion, his renal
insufficiency may have been a contributory factor in his overall medical
condition.\" R. at 879. This letter is not in the ROA, nor is there any
indication that the hearing officer suggested to the appellant that she
provide it.

Regarding her application for burial benefits, she testified that she
had mailed the claim to the RO in February 1983, and did not find out
until 1986 or 1987 that VA had not paid the mortuary. R. at 903-04. In
April 1992, the hearing officer denied an effective date earlier than
May 1, 1988, for § 1151 DIC, denied burial benefits, and denied
reopening as to the claims for § 1310 DIC and accrued benefits for TDIU.
R. at 913. (Section 351 of title 38, U.S. Code, was redesignated as
section 1151 by Pub. L. No. 102-83, § 5(a), 105 Stat. 378, 406 (1991).)
In August 1993, the appellant submitted to the Board a letter stating
that the veteran\'s cause of death had been due to a war injury to the
left kidney and that she wanted the Board to rule on the claim to have
this condition service connected \"at the same time other issues\" were
decided. R. at 915. Her letter enclosed a copy of a February 9, 1993,
\"Addendum to Autopsy Protocol\" prepared by Dr. Sheridan of the San
Bernardino County Coroner\'s office. R. at 916. The addendum stated that
the \"autopsy protocol and the microscopic slides from this case\" as
well as \"photocopies of some medical records and related documents sent
by \[the appellant\]\" had been reviewed. R. at 916. He stated that he
agreed with the findings described in the autopsy protocol and that the
description of the left kidney was also correct. *Ibid*. He noted that
the \"kidney is markedly abnormal histologically with extensive cortical
scarring and destruction of glomeruli with severe resultant tubular
atrophy.\" He also noted:

> There is marked thickening of the walls of the intraparenchymal
> arteries and arterioles in this kidney. The right kidney is entirely
> normal. These findings are consistent with severe injury to this
> kidney such as the subject suffered during World War II from a firearm
> injury. The severity of the injury to the left kidney is such that one
> would expect the patient to develop renal hypertension. Hypertension
> is a major risk factor for atherosclerosis. In addition, the cardiac
> hypertrophy due to the hypertension would have the effect of
> exacerbating the cardiac ischemia.
>
> Based on the above, it is this reviewer\'s opinion that the injury to
> the left kidney sustained during World War II ultimately led to the
> \[veteran\'s\] death.

R. at 916.

Based upon the submission of Dr. Sheridan\'s report, the Board requested
\"a medical opinion from a VA medical adviser as to whether there is a
causal relationship between the 'kidney disorder\' resulting from World
War II service and the veteran\'s death in 1982.\" R. at 13. A medical
opinion was then submitted by Dr. William O. Bailey, Jr., identified as
\"Medical Adviser\", in August 1993. He noted that he had reviewed Dr.
Sheridan\'s addendum to the autopsy protocol; summarized the veteran\'s
service and postservice medical records; and cited to two medical
treatises, Friedwald, W T., *Epidemiology of Cardiovascular Disease*,
*in* [Cecil Textbook of Medicine]{.smallcaps} 153-54 (19th ed. 1992), on
the risk factors for arteriosclerosis, and the [National Institute of
Health]{.smallcaps}, [Pub. No. 93-1088, National High Blood Pressure
Education Program]{.smallcaps} (1993), on the classification of blood
pressure for adults. R. at 919-23. He concluded: \"The evidence does not
show that the veteran had arterial hypertension. It does not show that
he had a cardiac condition or arteriosclerosis during or within one year
after service or that his death was due to any service-connected
condition.\" R. at 924. He did not respond to the Board\'s question
about the relationship between the kidney disorder and the veteran\'s
death. *See* R. at 919-24.

In the July 1, 1994, BVA decision here on appeal, the Board denied: (1)
Reopening as to the accrued-benefits TDIU claim; (2) § 1310 DIC after
having reopened as to that claim; (3) entitlement to burial benefits;
and (4) entitlement to an effective date earlier than May 1, 1988, for
the award of § 1151 DIC. R. at 4, 16-17. On April 25, 1995, the parties
presented oral arguments before the Court. Pursuant to the Court\'s
directive issued during oral argument, the parties submitted a joint
stipulation certifying that Dr. Bailey was a BVA medical adviser at the
time he rendered his August 25, 1993, opinion. Subsequently, the parties
also submitted supplemental memoranda on several issues identified by
the Court during and following oral argument.

**II. Analysis**

***A. Accrued Benefits based on TDIU***

The appellant\'s accrued-benefits claim currently on appeal is based on
the veteran\'s claim for entitlement to TDIU. As to the veteran\'s
kidney condition, the Board stated in its July 1994 decision:

> The record shows that the veteran sustained \[an SFW\] injury to the
> kidney during service and that ***the veteran should have been service
> connected for this injury at the time of his death***. In considering
> the claim for service connection for cause of the veteran\'s death in
> this appeal, the Board will consider the kidney condition to be
> service connected. However, with respect to the appellant\'s claim for
> payment of compensation for this disability, we note that neither the
> appellant\'s standing nor her eligibility for or entitlement to such
> benefits has been considered by the RO. Accordingly, this potential
> issue, ***which is not inextricably intertwined with any issue in the
> current appeal***, is referred to the RO for any necessary action.

R. at 5-6 (emphasis added). The Board proceeded to find that new and
material evidence had not been submitted since the time of the Board\'s
December 1987 decision disallowing the claim for accrued benefits based
on TDIU, and denied reopening. R. at 11. The Board noted the veteran\'s
service-connected disabilities but did not mention his kidney condition
as one of them for purposes of the TDIU claim. R. at 10.

The appellant contends that the Board should have assumed service
connection for the kidney condition in evaluating the claim for accrued
benefits based on TDIU and that the veteran\'s entire medical history
\"has to be reconsidered in light of the service-connected kidney
injury.\" Br. at 8. The Secretary concedes that the Board\'s decision
denying this claim should be vacated and the matter remanded for
readjudication \"in light of the veteran\'s newly service-connected
kidney condition\". Brief (Br.) at 35. He states: \"Since the additional
service-connected disability may constitute new and material evidence
deemed to have been in the file at the date of death, a remand . . . is
required.\" Br. at 35-36. The Court agrees. Accordingly, the Court will
remand the accrued-benefits claim for readjudication in light of the
kidney condition. Also, contrary to the conclusion of the Board, whether
the veteran is service connected for a kidney condition ***is***
inextricably intertwined with the TDIU claim in this case because at the
time of his death the veteran\'s service-connected disabilities did not
have a combined rating of 70% or more (*see* R. at 324-28), which,
pursuant to 38 C.F.R. § 4.16(a) (1996), is the minimum percentage
requirement that must be met before TDIU may be awarded when there are
two or more disabilities, and because the rating to be assigned for the
kidney condition may result in a combined rating that exceeds the stated
percentage requirement. *See Babchak v. Principi*, 3 Vet.App. 466, 467
(1992) (remanding PTSD increased-rating claim and then also remanding
TDIU claim on grounds that TDIU claim was inextricably intertwined with
degree of impairment ultimately adjudicated for PTSD); *Begin v.
Derwinski*, 3 Vet.App. 257, 258 (1992) (same). The Court notes that the
appellant states in her brief that the RO, subsequent to the Board\'s
July 1994 decision, granted service connection for the veteran\'s kidney
disease in September 1994. Br. at 7. (The ROA does not include that
decision because it was issued after the July 1994 Board decision here
on appeal.)

***B. Burial Benefits***

The appellant contends that she filed a timely application for burial
benefits in February 1983 and that she had not received notification of
VA\'s letter requesting further information, specifically, receipts for
funeral expenses. The Secretary asserts that the appellant abandoned her
claim for non-service-connected burial benefits because she failed to
respond to VA\'s request for further information in support of her
application. The Secretary concedes that, because the veteran died in a
VA facility, the Board should have considered entitlement to burial
benefits under 38 U.S.C. § 2303(a) and that its failure to do so
warrants a remand for adjudication under that section.

***1. Death in VA facility.*** The Court will remand the claim so the
Board can apply section 2303(a), which provides for the payment of
burial and funeral expenses \"\[w\]hen a veteran dies in a Department
facility . . . to which the deceased was properly admitted for hospital
. . . care\". It is unclear what type of time limitation, if any,
applies to this section. The Board will address these matters on remand.

***2. Non-service-connected benefits.*** If the Board does not award
benefits under section 2303(a), then on remand the Board must decide
whether the appellant is entitled to non-service-connected burial
benefits pursuant to sections 2302 and 2304. Section 2302 provides for
burial and funeral expenses in the case of a deceased veteran \"who at
the time of death was in receipt of compensation\", and section 2304
requires that such an application under section 2302 \"must be filed
within two years after the burial of the veteran\". 38 U.S.C. §§ 2302,
2304; *see also* 38 C.F.R. § 3.1601(a) (1996). With respect to
supporting evidence, VA regulations provide: \"Evidence required to
complete a claim for the burial allowance . . . , when payable,
(including a reopened claim filed within the 2-year period) must be
submitted within 1 year from date of \[VA\'s\] request for such
evidence.\" 38 C.F.R. § 3.1601(b) (1996). The claimant is required to
submit the statement of account and receipted bills. 38 C.F.R. §
3.1601(b)(1),(2). In the present case, the Board found that \"the
appellant failed to comply with \[VA\'s\] request for additional
evidence in a timely manner\" and that therefore she was not entitled to
benefits under 38 U.S.C. § 2304 and 38 C.F.R. § 3.1601(b). R. at 14-15.
It is undisputed that the veteran was in receipt of compensation at his
death. The issue in dispute is whether the appellant submitted a timely
application.

The veteran died on November 11, 1982. R. at 367. The ROA reflects that
in January 1983 the appellant filed an application for
non-service-connected burial benefits attaching copies of her marriage
certificate and the veteran\'s death certificate. R. at 375, 377-79. A
February 1983 RO letter to the appellant informed her that further
information, including a \"receipted funeral bill\", was needed to
process her claim. R. at 382. The appellant did not respond to this
letter within two years after the veteran\'s death; however, in August
1986 she inquired as to the status of her claim. *See* R. at 433. That
same month, the RO responded: \"Our records indicate that your claim for
\[b\]urial benefits was denied as you did not provide the requested
\[b\]urial receipts requested in 1983. You had two years in which to
file.\" R. at 433.

This Court has held that there is a \"presumption of regularity\", as
applied to the mailing of BVA decisions pursuant to 38 U.S.C. § 7104(e),
that \"'the Secretary and the BVA properly discharged \[their\] official
duties by mailing a copy of a BVA decision to the claimant and \[to\]
the claimant\'s representative, if any, on the date the decision is
issued\', and that that presumption can be overcome only by 'clear
evidence to the contrary\'\". *Davis v. Brown*, 7 Vet.App. 298, 300
(1994) (quoting *Ashley v. Derwinski*, 2 Vet.App. 307, 308-09 (1992));
*see* *Morris v. Sullivan*, 897 F.2d 553, 560 (D.C. Cir. 1990) (quoting
*United States v. Chemical Foundation*, 272 U.S. 1, 14-15 (1926), to the
effect that \"\[t\]he presumption of regularity supports the official
acts of public officers and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their
official duties\").

In *Chute v. Derwinski*, the Court held that although an assertion by a
claimant of nonreceipt of a BVA decision was insufficient by itself to
rebut the presumption of regularity, such an assertion together with the
submission of evidence of having made inquiries to VA after the decision
had been mailed and the lack of evidence from VA of having mailed the
decision rebutted such presumption. *Chute*, 1 Vet.App. 352, 353 (1991)
(per curiam order). In this case, the issue will be remanded for the
Board to decide whether the 1983 claim for non-service-connected burial
benefits under section 2302 was still open by virtue of the appellant\'s
assertion that she did not receive the RO\'s February 1983 letter and of
her August 1986 letter inquiring as to the status of her claim, as well
as by virtue of the extent to which she has assiduously pursued her
rights and responded promptly to other deadlines and VA communications
and the lack of any indication in the ROA to suggest that her veracity
was ever disputed by the RO or the BVA.

***3. Service-connected benefits:*** The Board found that because
service connection has not been granted for the cause of the veteran\'s
death, there is no basis for entitlement to service-connected burial
benefits under 38 U.S.C. § 2307. A veteran must die \"as the result of a
service-connected disability or disabilities\" in order for the
Secretary to be required to pay burial and funeral expenses under
section 2307. In his brief, the Secretary acknowledges that if the Court
decides to remand the claim for service connection for the cause of the
veteran\'s death, \"the service-connected burial\[-\]benefits issue
should also be remanded . . . since it is inextricably intertwined with
the former issue.\" Br. at 34. As discussed in part II.D.2., below, the
Court holds that there was no new and material evidence to reopen as to
the appellant\'s § 1310 DIC claim. Accordingly, the Court will affirm
the Board\'s finding that there is no basis for entitlement to
service-connected burial benefits under section 2307.

***C. Earlier Effective Date for § 1151 DIC Award***

The appellant contends that she is entitled to an effective date earlier
than May 1, 1988, with respect to the award of § 1151 DIC because VA had
constructive notice of the \"critical medical report\" dated January
1986 at the time of the December 1987 Board decision denying her
original DIC claim. She states that because she originally filed her DIC
claim in 1983 and because her federal tort claim had been settled before
the Board\'s December 1986 remand and before the Board\'s December 1987
decision, the award should be effective from 1983. The appellant\'s
second basis for asserting entitlement to an earlier effective date is
that the December 1987 Board decision relying on 38 C.F.R. § 3.358(c)(3)
in denying her claim should be invalidated by a retroactive application
of the Supreme Court\'s decision in *Brown v. Gardner*, where the
Supreme Court invalidated that regulation. Br. at 19; *Brown v.
Gardner*, 115 S.Ct. 552 (1994), *aff\'g* 5 F.3d 1456 (Fed. Cir. 1993),
*aff\'g* *Gardner v. Derwinski*, 1 Vet.App. 584, 586-88 (1991).

The appellant has tried valiantly to convince the Court that this claim
for an earlier effective date is not a claim based on clear and
unmistakable error (CUE) under 38 C.F.R. § 3.105(a) (1996); however, the
Court is not persuaded. The appellant contends that the Board\'s
omitting consideration of the 1986 medical report despite the facts that
the report (1) was prepared for VA use in the federal tort case, (2) was
used in promoting settlement of that case, and (3) was in VA\'s control
prior to the Board\'s December 1987 decision \"goes beyond failure of
\[the\] duty to assist\" and that \"\[e\]quity demands that VA be held
accountable for knowledge of the contents of the report.\" Br. at 16-17.
Essentially, the appellant is arguing that the Board did not consider
all the evidence then of record when it decided her § 1151 DIC claim in
1987.

Pursuant to this Court\'s decision in *Mason v. Brown*, on the facts of
this case the appellant could receive an earlier effective date only if
there were CUE in a final RO decision or if one of the prior RO
decisions were not final. *Mason*, 8 Vet.App. 44, 51 (1995). However one
phrases the appellant\'s contention here, it is still a CUE claim. She
is claiming that the Board, in its prior decision, erred in failing to
consider evidence of record (assuming the \"critical\" report is \"of
record\" under *Bell v. Derwinski*, 2 Vet.App. 611, 612-13 (1992) (per
curiam order)) and in applying an invalid regulation. Even assuming that
the \"critical\" report was then \"of record\" and that *Gardner*\'s
holding invalidating § 3.358(c)(3) applies retroactively, the appellant
is not entitled to relief under CUE because a CUE challenge cannot be
made to a prior final decision of the Board. *See* *Smith* *(William) v.
Brown*, 35 F.3d 1516, 1521 (Fed. Cir. 1994) (claim of CUE is collateral
attack on final decision of agency of original jurisdiction (AOJ),
generally RO). Nor can a CUE claim be raised as to the prior December
1983 and February 1985 final RO decisions because they were \"subsumed\"
within the Board\'s December 1987 decision. *Talbert v. Brown*, 7
Vet.App. 352, 355 (1995) (citing 38 C.F.R. § 20.1104 (1995) (when
determination of AOJ is affirmed by BVA, such determination is subsumed
by final appellate decision)); *see also* *Yoma v. Brown*, 8 Vet.App.
298, 299 (1995) (per curiam order) (concluding that Court\'s decision
vacating BVA decision has legal effect of nullifying previous underlying
merits adjudication by AOJ (RO) because RO decision was subsumed in BVA
decision). The Supreme Court\'s decision in *Gardner* did not *sub
silentio* extend this Court\'s jurisdiction to allow it to review prior
final Board decisions not otherwise subject to review in this Court.
Because the error asserted by the appellant is contained in the Board\'s
December 1987 decision (not the decision on appeal to this Court), the
appellant can challenge that Board decision, in a way that might be
subject to this Court\'s review, only on the basis of CUE, and the
Federal Circuit\'s decision in *Smith* is controlling in precluding this
Court from reviewing that decision. *See* *Talbert*, *supra*.

The appellant\'s contention that the Board\'s December 1987 decision was
the result of \"obvious error\" is also unavailing. \"In *Smith,* the
Federal Circuit equated 'obvious error\' claims with claims of 'clear
and unmistakable error\' and held that claims of such \[obvious\] error
by the Board are not subject to judicial review.\" *Chisem v. Brown*, 8
Vet.App. 374 (1995); *see also* *Russell v. Principi*, 3 Vet.App. 310,
314 (1992) (en banc) (also equating claims of CUE with obvious-error
claims). The Court holds that it has no jurisdiction to review the prior
final December 1987 Board decision in this case. Accordingly, the
Board\'s July 1994 decision as to this claim will be affirmed. *See* 38
C.F.R. § 3.400 (1995) (effective date of claim to reopen \"will be the
date of receipt of the claim or the date entitlement arose, whichever is
***later***\") (emphasis added).

The Court notes that the appellant is not precluded from seeking
equitable relief from the Secretary under 38 U.S.C. § 503(a) or from
seeking reconsideration of the Board\'s December 1987 decision. *See* 38
U.S.C. § 503 (a) (if Secretary determines that benefits have not been
provided because of administrative error, \"the Secretary may provide
such relief on account of such error as the Secretary determines
equitable\"); *Darrow v. Derwinski*, 2 Vet.App. 303, 305-06 (1992)
(section 503(a) authorizes Secretary to grant relief that is equitable
in nature and is separate and distinct from Secretary\'s authority to
determine entitlement to benefits under the law; Secretary\'s denial of
relief under section 503(a) not subject to judicial review). However,
this Court is not a court of equity and cannot provide equitable relief.
*See* *Harvey v. Brown*, 6 Vet.App. 416, 425 (1994).

***D. § 1310 DIC Claim Based on Death from Service-Connected
Disability***

The appellant contends that she was not given the opportunity, in
violation of this Court\'s opinions in *Thurber v. Brown*, 5 Vet.App.
119 (1993), and *Austin v. Brown*, 6 Vet.App. 547 (1994), to respond to
Dr. Bailey\'s medical report and that a remand is required for that
reason. The Secretary concedes that the Board committed an *Austin*
error but contends that it was not prejudicial to the appellant because
there is a plausible basis in the record for the Board\'s decision
without the Board medical adviser\'s opinion (BMAO). The Secretary
contends that the evidence shows that the veteran did not have
hypertension and that hypertension was not included in the autopsy
report as a cause of death. Alternatively, he asserts that if the Court
finds no plausible basis for the Board\'s decision without consideration
of the BMAO, then a remand is in order.

**1.** **Austin *error***. In *Thurber*, the Court held that before the
BVA may rely on any evidence developed or obtained by it subsequent to
the issuance of the most recent Statement of the Case (SOC) or
Supplemental SOC (SSOC), the BVA must provide the claimant with
reasonable notice of such evidence and of the reliance that the Board
proposes to place on it and must provide a reasonable opportunity for
the claimant to respond to it. *Thurber*, 5 Vet.App. at 126. Thereafter,
in *Austin*, the Court expanded upon *Thurber* and held that a BVA
decision must be set aside where, at least in part, it \"rests upon a
medical opinion procured by a process that violates both the express
holding of *Thurber*, *supra*, and the fair process principle underlying
*Thurber*.\" *Austin*, 6 Vet.App. at 551. The Court further expounded in
*Austin* that a claimant\'s reasonable opportunity to respond \"was not
limited to argument or comment, but also included the claimant\'s right
to submit additional evidence.\" *Ibid*. Finally, in *Austin* the Court
raised substantial questions about the process by which the policy of
seeking BMAOs in general was adopted by the BVA Chairman and required
that the Board, if BMAOs were to be used, address these questions, by
either complying with certain regulations (e.g., 38 C.F.R. §§ 19.9,
20.903 (1996)) or providing reasons or bases explaining why such
compliance was unnecessary. *Austin*, 6 Vet.App. at 553-54; *see also*
*Williams (Margie) v. Brown*, 8 Vet.App. 133, 137 (1995).

In the instant case, the Secretary concedes (Br. at 33) that the
Court\'s decision in *Austin* applies to the present case under *Karnas
v. Derwinski*, 1 Vet.App. 308, 312-13 (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 appellant should . . . apply unless Congress
provided otherwise or permitted the Secretary . . . to do otherwise and
the Secretary did so\"). He is correct. *See* *Williams*, 8 Vet.App. at
136-38. As the Secretary also concedes (Br. at 26), the *Austin*
requirement was violated in this case insofar as the record contains no
indication that the claimant was expressly informed, directly or though
her counsel, that she could submit additional evidence in response to
Dr. Bailey\'s August 1993 BMAO. That opinion was obtained after the
issuance of the October 1991 SSOC (R. at 838), and the appellant was not
thereafter afforded an opportunity to respond or to submit additional
evidence. *See* *Williams*, 8 Vet.App. at 138. Moreover, even if such an
opportunity had been provided, the very use of the BMAO by the Board
without a discussion of compliance with applicable regulations would
have raised the same questions raised in *Austin* and *Williams* about
the process by which the BMAO was obtained and used.

However, the *Austin* violation can result in an unfair adjudication and
a remand only if the Court determines that the denial of the § 1310 DIC
claim was properly reopened by the Board. *See* *Edenfield* *v. Brown*,
8 Vet.App. 384, 390-91 (1995) (en banc) (holding that, because appellant
had failed to submit well-grounded claim, Board\'s failure to comply
with fair-process requirements enunciated in *Thurber*, 5 Vet.App. at
126, was not prejudicial); *White (Frank) v. Brown*, 6 Vet.App. 247, 252
(1994) (concluding that where there was no new and material evidence and
claim should not have been reopened, *Thurber* error was not prejudicial
and did not require remand).

***2. New and material evidence***. Under the applicable law, the
Secretary must reopen a prior final disallowance of a claim when \"new
and material evidence\" is presented or secured with respect to the
basis for the disallowance of that claim. *See* 38 U.S.C. §§ 5108,
7104(b), 7105(c). On a claim to reopen, a \"two-step analysis\" must be
conducted under section 5108. *Manio v. Derwinski*, 1 Vet.App. 140, 145
(1991). The first step involves a determination as to whether the
evidence presented or secured since the last final disallowance of the
claim is new and material. *See* *Blackburn v. Brown*, 8 Vet.App. 97,
102 (1995); *Cox v. Brown*, 5 Vet.App. 95, 98 (1993); *Colvin v.
Derwinski*, 1 Vet.App. 171, 174 (1991).

In *Evans v. Brown*, the Court has broken down this first *Manio* step
into a three-question inquiry: The first question is whether the newly
presented evidence is actually \"new\" in the sense that it was not of
record at the time of the last final disallowance (on any basis \--
merits or otherwise) of the claim and not merely cumulative of other
evidence that was then of record. *Evans*, 9 Vet.App. 273, 283 (1996).
The second question is whether the \"new\" evidence is probative of
(tends to prove) the \"issue\[s\] at hand\" (each issue that was a
specified basis for the last final disallowance of the claim). *Ibid*.
The third question is whether, if the evidence is new and probative,
then, in light of all of the evidence of record, there is a reasonable
possibility that the outcome of the claim on the merits would be
changed. *Ibid*. Affirmative answers to both materiality questions are
required in order for \"new\" evidence to be \"material\". *Ibid*. As to
those two \"materiality\" components, the credibility of the newly
presented evidence is generally presumed. *Justus v. Principi*, 3
Vet.App. 510, 513 (1992). Also, in looking at the first materiality
component (whether the evidence found to be \"new\" is also probative),
\"the focus is on the new evidence; as to the second materiality
component (whether there is a reasonable possibility that the outcome on
the merits would be changed), the focus is on ***all*** of the evidence
of record rather than just on the new evidence.\" *Evans*, 9 Vet.App. at
283.

If the evidence satisfies the three *Evans* questions and is thus new
and material, then the second step of the *Manio* two-step process
applies. The Board must then reopen the claim and \"review the former
disposition of the claim\", 38 U.S.C. § 5108 \-- that is, review all the
evidence of record to determine the outcome of the claim on the merits.
*See* *Manio*, *supra*; *Jones (McArthur) v. Derwinski*, 1 Vet.App. 210,
215 (1991). A Board determination as to whether evidence is \"new and
material\" for purposes of reopening is a question of law subject to de
novo review by this Court under 38 U.S.C. § 7261(a)(1). *See Masors v.
Derwinski*, 2 Vet.App. 181, 185 (1992); *Jones*, 1 Vet.App. at 213;
*Colvin*, *supra*.

In this case, the Board found that evidence submitted since the April
1983 final RO decision denying § 1310 DIC was new and material
(specifically, Dr. Sheridan\'s February 1993 medical report) but denied
the DIC claim on the merits. R. at 7. The last final disallowance of
this claim was the April 1983 RO decision. R. at 392; *see* *Evans*,
*supra*. Subsequent to April 1983, the appellant submitted Dr.
Sheridan\'s February 1993 report. R. at 916. That medical report was
\"new\" because it provided evidence that was not cumulative of any
already in the file. *See Evans, supra; Struck* *v. Brown*, 9 Vet. App.
145-151 (1966); *Colvin*, *supra*.

The next question is whether that evidence was probative of the issue at
hand. *See Evans*, *supra*. The RO\'s April 1983 disallowance was based
on a lack of evidence showing that the veteran had had heart disease in
service or within the presumption period or showing that his
service-connected disabilities contributed to his death. R. at 392. Dr.
Sheridan opined that the findings from the autopsy \"are consistent with
severe injury to this kidney such as the subject suffered during World
War II from a firearm injury\". He further stated: \"The severity of the
injury to the left kidney is such that one would expect the patient to
develop renal hypertension. Hypertension is a major risk factor for
atherosclerosis. In addition, the cardiac hypertrophy due to the
hypertension would have the effect of exacerbating the cardiac
ischemia.\" He concluded that, based on this analysis, \"the injury to
the left kidney sustained during World War II ultimately led to the
\[veteran\'s\] death.\" R. at 916. This evidence tends to show that the
veteran\'s kidney condition is related to service (of course, the Board
has already conceded that connection, and the RO has apparently awarded
service connection therefor) and that this condition led to the
veteran\'s death. *See* *Evans, supra*. Hence, because \"the focus is on
the new evidence\", *Evans*, 9 Vet.App. at 283, for purposes of
determining whether new evidence is probative, Dr. Sheridan\'s report is
probative. However, that is not sufficient to make it \"material\".

In order for probative evidence to be \"material\", that evidence, when
reviewed in light of all the evidence of record, must create a
reasonable possibility of changing the outcome. *See* *Evans*, *supra*.
For purposes of making that determination, \"the focus is on ***all***
of the evidence of record rather than just on the new evidence.\"
*Evans*, *supra*. Dr. Sheridan's report stated merely that the veteran
was ***expected*** to develop hypertension. As the Board put it, Dr.
Sheridan found that \"the veteran\'s kidney disease [could
cause]{.underline} hypertension\", and Dr. Sheridan\'s conclusion was
based entirely on his hypothesis as to the veteran\'s having suffered
from hypertension. R. at 13. The Board specifically found that the
\"argument that the veteran\'s kidney injury caused hypertension, which
caused the veteran\'s death\[,\] is not supported by the evidence of
record as hypertension is not shown.\" R. at 14. The Court holds that
there is a plausible basis for the Board\'s finding; the record is
devoid of any diagnosis of hypertension or medical opinion that the
veteran had had hypertension. Accordingly, the Court holds that, even
presuming the credibility of Dr. Sheridan\'s opinion under *Evans* and
*Justus*, both *supra*, in the context of the other evidence of record
there is not a reasonable possibility that Dr. Sheridan\'s statement
could change the outcome of the claim on the merits. *See* *Evans*,
*supra*. In reaching this conclusion, the Court has not given any
consideration to the conclusion by Dr. Bailey that the veteran did not
have "arterial hypertension" because, as discussed in part II.D.1.,
above, that BMAO was obtained in violation of this Court\'s opinions in
*Thurber* and *Austin*, both *infra*, and thus is not for consideration
in making this assessment as to the materiality of Dr. Sheridan\'s
opinion. *See* *Bielby v. Brown*, 7 Vet.App. 260, 264-69 (1994) (in
determining whether evidence was new and material, Court did not discuss
independent medical examination report that was held to be obtained
through \"questionable\" process).

The Court\'s holding that there was no new and material evidence to
reopen as to the § 1310 DIC claim does not, of course, preclude the
appellant from seeking to reopen as to that claim by submitting new
medical evidence \-- either from Dr. Sheridan or elsewhere \-- that the
veteran did in fact have hypertension or that the veteran\'s now
service-connected kidney disease otherwise contributed to his death in
such fashion as to make his death service connected. *See* 38 U.S.C. §§
5108, 7104(b). The appellant is also not precluded, if successful in
obtaining service connection for the cause of the veteran\'s death, from
seeking service-connected burial benefits under 38 U.S.C. § 2307.

***3. Hearing officer duty.*** At the March 1992 hearing, the appellant
read from a February 1992 letter from Dr. Lu opining that \"renal
insufficiency may have been a contributing factor in \[the veteran\'s\]
overall medical condition\". R. at 879. Although the hearing officer did
not inform the appellant \-- and probably should have done so \-- that
she should submit Dr. Lu\'s statement (*see* 38 C.F.R. § 3.103(c)(2)
(1996) (VA hearing personnel must \"suggest the submission of evidence
which the claimant may have overlooked and which would be of advantage
to the claimant\'s position\")), the Court concludes that the opinion of
Dr. Lu on the question of whether kidney disease contributed to the
veteran\'s overall medical condition is so speculative (\"may have\")
and so generalized as to death (it does not express an opinion as to a
nexus between the kidney disorder and the veteran\'s ***death***) that
even if what the appellant testified Dr. Lu had written were actually in
the record as direct evidence from Dr. Lu, such medical evidence would
have been too speculative to have made a difference on the question of
whether there was new and material evidence to reopen as to the claim
for service connection of the veteran\'s death. *See* 38 U.S.C. §
7261(b); *Edenfield*, 8 Vet.App. at 390-91 (as to nonprejudicial error);
*see also* *Dean v. Brown*, 8 Vet.App. 449, 455 (1995) (concluding that
even if physician\'s statement were of record, it would be insufficient
to render claim well grounded \"because it would be an opinion only as
to the likelihood of the veteran\'s subsequently developing
Huntington\'s chorea, not an opinion that the disability had its onset
in, was aggravated by, or would otherwise be related to the appellant\'s
condition in service\"); *Johnson (Ethel) v. Brown*, 8 Vet.App. 423,
427-28 (1995) (holding that hearing officer had no obligation under 38
C.F.R. § 3.103(c)(2) to advise appellant as to physician\'s statement
because \"that statement would not have helped prove the claim\" \--
that is, that statement would not have \"provide\[d\] a nexus with the
veteran\'s service\").

**III. Conclusion**

Upon consideration of the record and the submissions of the parties and
in accordance with the foregoing discussion, the Court affirms the July
1, 1994, BVA decision as to the § 1310 DIC claim, the denial of burial
benefits under 38 U.S.C. § 2307, and an effective date earlier than May
1, 1988, for § 1151 DIC, and vacates the decision and remands the
matters of accrued benefits based on TDIU and burial benefits under 38
U.S.C. §§ 2302, 2303(a), and 2304 for expeditious further development
and readjudication, on the basis of all applicable law, regulation, and
procedure, and issuance of a readjudicated decision supported by an
adequate statement of reasons or bases, *see* 38 U.S.C. §§ 2302,
2303(a), 2304, 5107(a), (b), 5108, 7104(a), (d)(1), 7105(c), 7261;
*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
Court). *See Allday v. Brown*, 7 Vet.App. 517, 533-34 (1995). \"On
remand, the appellant will be free to submit additional evidence and
argument\" on the remanded claims. *Quarles v. Derwinski*, 3 Vet.App.
129, 141 (1992). 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.

AFFIRMED IN PART; VACATED and REMANDED IN PART.