Citation Nr: 0333464 Decision Date: 12/01/03 Archive Date: 12/15/03 DOCKET NO. 94-48 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California 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 Glenn A. Wasik, Counsel INTRODUCTION The veteran served on active duty from August 1968 to August 1988. The veteran died in June 1990. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 1994, a statement of the case was issued in October 1994, and a substantive appeal was received in November 1994. The appellant testified at a personal hearing at the RO in February 1995. The issue on appeal was before the Board in May 2002, at which time the appeal was denied. The appellant appealed the Board's May 2002 decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). By Order dated March 12, 2003, the Court vacated the Board's May 2002 decision and remanded the case back to the Board for further action pursuant to a March 2003 Joint Motion by VA and the appellant. REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). By Order dated March 12, 2003, the Court vacated the Board's May 2002, decision based on the March 2003 Joint Motion which alleged that VA did not fulfill its duty to the appellant by properly providing VCAA notice. In the recent past, the Board has been attempting to cure any VCAA notice deficiency by mailing a VCAA letter to the appellant under the provisions of 38 C.F.R. § 19.9(a)(2)(ii). However, this regulatory provision was recently invalidated by the United States Court of Appeals for the Federal Circuit. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, while the Board regrets further delay in this case, it appears that additional action by the RO to comply with all VCAA notice requirements is necessary before the Board may properly proceed with appellate review. Additionally, additional evidence has been received, including an October 2003 opinion letter from Craig N. Bash, M.D. With regard to any such evidence which was not already considered by the RO, preliminary review by the RO is necessary. Accordingly, the case is hereby REMANDED for the following actions: 1. The RO should furnish the appellant with an appropriate letter to ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and implementing regulations, now codified at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). The RO should ensure that the appellant has been properly advised of (a) the information and evidence not of record that is necessary to substantiate her claim, (b) the information and evidence that VA will seek to provide, and (c) the information and evidence that the appellant is expected to provide. The appellant should also be advised of the time period for submitting new evidence to ensure compliance with Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). 2. After completion of the above, the RO should review the record, to include all evidence received since the most recent supplemental statement of the case. The appellant 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. 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. _________________________________________________ ALAN S. PEEVY 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) (2003).