Citation Nr: 0903759 Decision Date: 02/03/09 Archive Date: 02/12/09 DOCKET NO. 05-05 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from February 1979 to February 1999. He died in April 2003. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Sioux Falls, South Dakota. The appellant subsequently moved to Texas and testified at a hearing held at the RO in Houston, Texas, in April 2005; however, she currently resides within the jurisdiction of the M&ROC. In November 2007, the Board remanded the veteran's appeal to the M&ROC via the Appeals Management Center (AMC) in Washington, DC, for additional development. Unfortunately, and although the Board regrets any additional delay caused by this REMAND, for the reasons explained below, the appeal is REMANDED again to the M&ROC/AMC. VA will notify the appellant if further action is required on her part. REMAND In its November 2007 remand, the Board requested that the M&ROC provide the appellant with VCAA notice on her claim of service connection for the cause of the veteran's death. Specifically, the Board noted that the appellant's claim of service connection for the cause of the veteran's death also was a claim for Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1310. The Board also noted that the Court recently had expanded the notice requirements for a DIC claim in Hupp v. Nicholson, 21 Vet. App. 342 (2007), and asked the M&ROC to send a letter to the appellant and her service representative which included: (1) a statement of the conditions for which the veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the DIC claim based on the veteran's previously service-connected conditions, and (3) an explanation of the evidence and information required to substantiate the DIC claim based on the conditions not yet service connected. See BVA Remand dated November 30, 2007, at p. 4. A review of the claims file shows that the M&ROC did not comply with the Board's November 2007 remand instructions. A VCAA notice letter issued to the appellant and her service representative on December 11, 2007, included boilerplate language for DIC claims but did not include the information requested in the Board's November 2007 remand instructions (as outlined above). Also, as the appellant's service representative noted in a January 2009 Post-Remand Brief submitted to the Board, the VCAA notice letter issued on December 11, 2007, contained information concerning earlier effective date claims. There is no earlier effective date claim currently on appeal in this case. The Board agrees with the appellant's service representative that VCAA notice letter issued to the appellant and her service representative on December 11, 2007, was "confusing" at best and did not comply with the November 2007 remand instructions. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the M&ROC/AMC to re-certify this appeal to the Board in November 2008 without complying with the November 2007 remand instructions. Given this error, and given that the letter issued to the appellant and her service representative on December 11, 2007, did not comply with the Board's November 2007 remand instructions, another remand is required. Accordingly, the case is REMANDED for the following action: 1. As requested in the Board's November 2007 remand, provide the appellant with a letter that complies with the provisions of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 and the Court's decision in Hupp v. Nicholson, 21 Vet. Ap. 342 (2007). The letter should include (1) a statement of the conditions for which the veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on the veteran's previously service-connected conditions; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on the conditions not yet service connected. Provide the appellant with notice of what information and evidence she should provide and what evidence VA will obtain. Include an explanation as to the information or evidence needed to establish an effective date for the claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). A copy of the notice letter should be included in the claims file. 2. Thereafter, readjudicate the claim of service connection for the cause of the veteran's death. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ JAMES L. MARCH 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) (2008).