Citation Nr: 1140199	
Decision Date: 10/28/11    Archive Date: 11/07/11

DOCKET NO.  10-20 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for lung cancer, claimed as due to herbicide exposure, for accrued benefits purposes.

2.  Entitlement to service connection for the cause of the Veteran's death.

3.  Entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to August 1974.  He died on January [redacted], 2006.  The appellant is the Veteran's widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In February 2010, the appellant testified during a hearing before a Decision Review Officer at the RO.  A transcript of that hearing is of record. 

In October 2010, the appellant testified during a Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript of that hearing is also of record. 

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.



REMAND

Following the RO's certification of this appeal to the Board, in August 2010, the appellant submitted additional evidence in the form of a lay statement from S. D.  The statement expresses personal knowledge that the Veteran was exposed to Agent Orange during his period of service.  In a statement received by VA in August 2011, the appellant requested that the appeal be remanded to the RO for review of the additional evidence.  As such evidence is pertinent to the appellant's claims on appeal, and has not yet been considered by the RO, such evidence must be referred to the RO for review.  See 38 C.F.R. § 20.1304(c) (2010).  Therefore, the appeal must be remanded.

Accordingly, the case is REMANDED for the following action:

After completing any development deemed necessary, readjudicate the issues on appeal, in light of the lay statement from S. D., received by VA in August 2010.  If any benefit sought remains denied, provide an additional supplemental statement of the case to the appellant and her representative, and return the appeal to the Board for appellate review, after the appellant has had an adequate opportunity to respond.



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. 2010).



_________________________________________________
ROBERT C. SCHARNBERGER
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) (2010).