Court holds the Board must consider applicable VA Fast Letter

Court holds the Board must consider applicable VA Fast Letter

Summary of the Case

The Veteran served in the United States Army from 1968 to 1970.  He received the National Defense Service Medal and the Vietnam Service Medal.  While in service, he was treated for bilateral mild, chronic, otitis externa. R-1056.  In August of 1973, VA granted service connection for otitis externa at a noncompensable evaluation.  He married the Appellant in 1976.

The Veteran passed away in May of 2001.  His immediate cause of death was listed as a glioblastoma with the contributing cause of death attributed to his auditory canal disease.  His widow, the Appellant, sought service connection for her husband’s death in 2001.  VA denied the claim. She sought service connection again in 2006, noting that VA Fast Letter 13-04 directed VA to grant service connection for cause of death when a service-connected disability is listed as a primary or contributing factor on a death certificate.

Board denies service connection for cause of death

VA subsequently obtained three negative VA examinations, and denied service connection for the Veteran’s cause of death in an April 2016 Board decision.  In its decision, the Board relied on the three negative VA examinations but did not acknowledge VA Fast Letter 13-04 nor discuss whether it applied to the Veteran’s claim. Fast Letter 13-04 instructs VA to immediately grant service connection for cause of death if a service-connected condition is listed as a principal or contributory cause of death on a veteran’s death certificate.

CAVC agrees with CCK’s arguments

CCK successfully appealed to the Court the denial of service connection for the Veteran’s cause of death.  CCK argued, and the Court agreed, that the Board erred when it failed to consider VA Fast Letter 13-04 at all in its decision.  Despite VA arguing that the Fast Letter is not binding on the Board, the Court noted that the Fast Letter has been incorporated into the VA Adjudication Procedures Manual.  Thus, the Board erred when it did not discuss this applicable provision of law.  Accordingly, the Court vacated the Board’s April 2016 decision, and remanded the Appellant’s claim for readjudication.

Category: Court Wins