Citation Nr: 1441261 Decision Date: 09/16/14 Archive Date: 09/22/14 DOCKET NO. 11-03 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1977, and from February 1981 to May 1995. The Veteran died in September 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant filed a timely notice of disagreement in July 2004, and the claims were readjudicated in a January 2011 statement of the case. The appellant perfected the appeal in February 2011. The appellant was scheduled for a video conference hearing before the Board in April 2014; however, after being notified of the scheduled hearing, the appellant did not report and did not request a postponement. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Board has reviewed the physical claims files, as well as the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS), to ensure a complete review of the evidence in this case. The issues of service connection for the cause of the Veteran's death and entitlement to DEA benefits are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND After a review of the record, the Board finds that additional development is needed before proceeding with appellate review of the issues of service connection for the cause of the Veteran's death and entitlement to DEA benefits. Specifically, VA has a duty to provide adequate notice regarding the claims on appeal. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, 38 U.S.C.A. § 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant submitted a claim for DIC benefits in October 2003. See October 2003 VA Form 21-534. In a December 2003 letter, the RO advised the appellant how to establish entitlement to DIC benefits, but did not provide notice specifically tailored to the appellant's claim. Specifically, the RO did not provide a statement of the conditions for which the Veteran was service connected at the time of his death. The appellant submitted another VA Form 21-534 in November 2010. Similarly, in a June 2010 notice letter, the RO explained the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, as well as the evidence and information required to substantiate a DIC claim based on a condition not yet service connected; however, the June 2010 letter did not provide notice tailored to the appellant's claim. The Board notes that the RO construed the November 2010 VA Form 21-534 as a claim to reopen service connection for the cause of the Veteran's death; however, because the appellant had submitted a timely NOD, which required issuance of a SOC, the February 2004 rating decision has not become final. For this reason, the November 2010 VA Form 21-534 was not in fact a claim (to reopen), but merely additional evidence in support of the appealed issue. Once an appellant submits a NOD, VA must issue a SOC, no matter how much time passes. See Manlincon v. West, 12 Vet. App. 238 (1999) (where there is a NOD, the proper action is to remand the issue to the RO for issuance of SOC); Acosta v. Principi, 18 Vet. App. 53 (2004) (Court found veteran's writing was a clear expression of disagreement and was sufficient to constitute a NOD, the NOD remains pending, and case must be remanded for VA to issue a SOC); Fenderson v. West, 12 Vet. App. 119 (1999) (the remedy for a timely NOD to is remand for VA to issue a SOC). Given the appellant's detailed application for DIC benefits, reflected in the October 2003 and November 2010 VA Form 21-534s, the Board finds that VA has a duty to provide notice tailored to the claim. As neither the October 2003 nor June 2010 letters provided such notice, the issue of service connection for the Veteran's cause of death must be remanded to provide the appellant with adequate VCAA notice. 38 U.S.C.A. § 5103(a); Hupp, 21 Vet. App. at 352-53. The appellant has also filed a claim of entitlement to DEA benefits under the provisions of 38 U.S.C. Chapter 35. DEA allowance under Chapter 35 may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2012); 38 C.F.R. 3.807 (2013). Because the outcome of the appellant's claim for Chapter 35 benefits is dependent on the outcome of the claim for service connection for the cause of the Veteran's death, the claims are "inextricably intertwined." Thus, the Board's determination as to the Chapter 35 claim must be deferred on remand pending the development on the cause of death claim requested below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board also notes that the appellant was not provided with notice of what evidence she needed to submit to substantiate the claim of entitlement to DEA under the provisions of 38 U.S.C. Chapter 35. Therefore, on remand, she should be provided with such notice. Accordingly, the issues of service connection for the cause of the Veteran's death and entitlement to DEA benefits ARE REMANDED for the following action: 1. The appellant should be provided with notice that fully complies with Hupp, 21 Vet. App. at 352-53. In particular the appellant should be provided with a: (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 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. At the time of the Veteran's death in September 2003, the Veteran was service connected for renal cysts in the left kidney, asymptomatic hepatitis C, and left leg varicose veins, all of which were rated as noncompensable. 2. The appellant should be provided with a notice letter that explains how to substantiate the claim for Dependents' Educational Assistance under the provisions of 38 U.S.C. Chapter 35. 3. When the development above has been completed, and after any additional notification and/or development deemed necessary is undertaken, the remanded issues should be readjudicated. If any benefit sought is not granted, the appellant should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). 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. 2013). _________________________________________________ J. PARKER 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) (2013).