Citation Nr: 0811271 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-08 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to an initial compensable rating for bilateral hearing loss, for accrued benefits purposes. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The appellant and C.W. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The veteran served on active duty from December 1967 to January 1969. He had additional periods of reserve duty from January 1969 to August 1972, and from January 1987 to February 1999. The veteran died in January 2004. The appellant is his spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which denied entitlement to service connection for the cause of the veteran's death. In May 2006, the appellant and a friend testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board (i.e., a "Travel Board" hearing). A transcript of the proceeding is of record. The Board's decision of July 2006 denied the appellant's claim. She then appealed to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a September 2007 Joint Motion, the Court entered an Order vacating the Board's decision and remanding the claim for the directives specified. For the reasons indicated, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. The appellant's December 2007 correspondence further raises the issues of entitlement to service connection for asthma, and a higher rating for service-connected post-traumatic stress disorder (PTSD), both presumably for accrued benefits purposes. These claims, however, are not currently before the Board. See 38 C.F.R. § 20.200 (2007). Whereas these claims have not been adjudicated by the RO in the first instance, to include the question of whether they were timely filed pursuant to 38 C.F.R. § 3.1000(c) (2007), they are referred to the RO for appropriate development and consideration. REMAND In its September 2007 Joint Motion the Court requested that the Board provide more comprehensive discussion of the reasons and bases pertaining to its decision on further consideration of the claim, with reference to one or more sources of evidence indicating that service-connected PTSD may have been one of the contributing factors to the cause of the veteran's death. The case was then returned to the Board. Thereafter, the Board sent to the appellant an October 2007 notice letter informing her of the opportunity to submit additional argumentation and evidence prior to the readjudication of her claim within a 90-day time period. In response, she provided several items of evidence not previously on file, including but not limited to a detailed personal statement dated December 2007, statements from physicians and other treatment providers, and various medical journal articles. Moreover, she elected the option set forth upon the Board's October 2007 letter to have the case remanded to the RO as the Agency of Original Jurisdiction (AOJ) to initially consider such evidence. Thus, a remand is necessary to implement this request. Also, during the pendency of this appeal, the Court issued a decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007), which set forth a new standard as to notice under the Veterans Claims Assistance Act (VCAA) with regard to a claim for Death and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1310 (where premised upon service-connected or compensable disability). Generally, the notice provided must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The Court in Hupp further held in that case, when the veteran was not service-connected for any disability during his lifetime, such a claim-specific notice was not required. Id. at 353- 55. In this instance, the April 2004 VCAA notice correspondence provided to the appellant explained in some detail the general regulatory requirements for DIC benefits. Nonetheless, further notice information in this regard should be provided to ensure compliance with the Hupp decision, particularly as the veteran previously had at least one service-connected disability, based upon which a more particularized VCAA notice is warranted. Additionally, the record indicates that a November 2004 RO rating decision granted service connection for bilateral hearing loss and assigned a noncompensable rating (0 percent) for this condition. This decision represented the initial adjudication of a claim for benefits the veteran previously had filed in May 2003. In its December 2004 letter notifying the appellant of that determination, the RO explained that as no monetary compensation was awarded, her claim for accrued benefits remained denied. Thereafter, later that month, the appellant provided a statement that may reasonably be construed as a notice of disagreement (NOD) with the initial noncompensable rating for bilateral hearing loss, for purposes of entitlement to accrued benefits. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). She has since further indicated in more recent correspondence that this is indeed the benefit sought. Consequently, this claim should be remanded to the RO for issuance of a statement of the case (SOC) pertaining to the matter. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Prior to any further adjudication of the claim for service connection for the cause of the veteran's death, the RO should send the appellant another VCAA letter in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and all other applicable legal precedent. This additional letter must set forth discussion of the criteria for demonstrating entitlement to DIC benefits, as outlined in the Court's decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. The RO should readjudicate the claim for entitlement to service connection for the cause of the veteran's death. If the benefit sought is not granted, the appellant and her representative should be furnished with a supplemental statement of the case (SSOC) that includes review of all additional evidence received from the appellant in December 2007, and then afforded an opportunity to respond before the file is returned to the Board for further consideration. 3. The RO shall issue a statement of the case addressing the issue of entitlement to an initial compensable rating for bilateral hearing loss, for accrued benefits purposes. If, and only if, the appellant submits a timely substantive appeal addressing this issue should it be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ N. R. Robin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).