Citation Nr: 0327317 Decision Date: 10/10/03 Archive Date: 10/20/03 DOCKET NO. 01-05 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation pursuant to the provisions of 38 U.S.C.A. § 1318. 3. Eligibility to Dependent's Educational Assistance under the provisions of 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney at law ATTORNEY FOR THE BOARD Joseph A. Rose, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board. In a decision dated September 2001, the Board stayed the claim of entitlement to Dependency and Indemnity Compensation pursuant to the provisions of 38 U.S.C.A. § 1318, and denied the appeal as to remaining claims. The claimant then appealed the Board's decision to deny the remaining two claims to the United States Court of Appeals for Veterans Claims (Court). In April 2003, the Court vacated the September 2001 Board decision and remanded the case due to the finding that VA never notified the claimant of who is responsible for obtaining the evidence necessary to substantiate her claims under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). Quartuccio v. Principi, 16 Vet. App. 183 (2002). While the claims of entitlement to service connection for the cause of the veteran's death and eligibility to Dependent's Educational Assistance under the provisions of 38 U.S.C.A. Chapter 35 were on appeal before the Court, the claimant attempted to raise the claim of new and material evidence to reopen the service connection claim for the cause of the veteran's death. The RO appeared to have reopened the service connection claim for the cause of the veteran's death, but then denied the claim in a February 2003 rating decision on the merits. The claimant filed a notice of disagreement later that month. It does not appear that a statement of the case has been issued. Under most circumstances, when the Board finds that there is no statement of the case as to a claim, the proper procedure is to remand the case to the RO for the issuance of a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999) (The notice of disagreement initiated review by the Board of the RO's denial of the claim and bestowed jurisdiction on the Court; the Board should have remanded the issue to the RO for the issuance of a statement of the case). However, in this case, the claimant is raising a new and material evidence claim to reopen the same service connection claim for cause of the veteran's death that the Court remanded to the Board to adjudicate. The Board again notes that the Court has vacated the September 2001 Board decision. In other words, the service connection claim for cause of death is still an active claim and therefore, any new and material evidence claim regarding the same issue is either premature or unnecessary. Therefore, the Board will not remand this claim for a statement of the case. Additionally, in a statement received September 2003, the claimant's representative raised an issue that the claimant was entitled to an increased rating for service-connected left zygoma and orbital fractures with scar and hyperesthesia, left side of face, for accrued benefit purposes. This would appear to be a new claim and this matter is hereby referred to the RO for appropriate action. REMAND As noted in the introduction, the Court vacated the September 2001 Board decision and remanded the case due to the finding that VA never notified the claimant of who is responsible for obtaining the evidence necessary to substantiate her claims under the VCAA. Quartuccio, supra. The Board notes that following the Board decision, the veteran was issued a VCAA letter in September 2002. This VCAA letter included a 30-day response period for the claimant to provide the evidence necessary to substantiate her claims. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Additionally, while the claims were on appeal to the Court, relevant evidence was added to the record. This includes a medical opinion from Craig N. Bash, M.D. dated June 2002, which stated that the veteran's Alzheimer's dementia (AD) was caused by his in-service head injury and that his AD significantly contributed to his demise. A VA examination report dated December 2002 is included in the record and another medical opinion statement from Dr. Bash dated March 2003. Dr. Bash's medical opinions also include attached articles on neurology. The relevant evidence above has not received initial consideration from the RO with regards to the claims now before the Board. See Disabled Am. Veterans, supra. In light of the recent judicial decisions, this case is being remanded for consideration of new evidence and to cure a procedural defect. The Board notes that the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. 2. After undertaking any additional development which the RO may deem necessary, the RO should review the expanded record (to specifically include the additional medical opinions, articles, and VA examination report dated December 2002) and determine if entitlement to service connection for the cause of the veteran's death, entitlement to Dependency and Indemnity Compensation pursuant to the provisions of 38 U.S.C.A. § 1318, and eligibility to Dependent's Educational Assistance under the provisions of 38 U.S.C.A. Chapter 35, can be granted. If any of these benefits sought are not granted, the claimant and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant and her representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ WAYNE M. BRAEUER 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) (2002).