Citation Nr: 0810285 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-03 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Survivors' and Dependents' Educational Assistance under the provisions of Title 38, Chapter 35, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from November 1950 to September 1954, from February 1955 to May 1959, and from June 1959 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The appellant is seeking to reopen the previously denied claim of entitlement to service connection for the cause of the veteran's death. She is also seeking entitlement to Survivors' and Dependents' Educational Assistance under the provisions of Title 38, Chapter 35 of the United States Code. VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in new and material evidence cases, the claimant must be notified of the elements of service connection on which the claim was previously denied, and be given notice that she must submit evidence specifically relating to such elements. Based upon its review of the veteran's claims folder, the Board finds that the RO failed to provide the appellant with adequate notice concerning the claims on appeal herein. Specifically, the January 2004 letter regarding entitlement to service connection for the cause of the veteran's death notified the appellant of the elements of service connection on which her claim was previously denied and that she must submit evidence relating to such elements for her claim to be reopened. In addition, it does not appear that the appellant has been given any letter concerning the issue of entitlement to Survivors' and Dependents' Educational Assistance. Thus, the RO has failed to notify the appellant of the information and evidence needed to substantiate her claim of entitlement to Survivors' and Dependents' Educational Assistance. The RO has also failed to notify the appellant of the information and evidence needed to substantiate her claim to reopen, to include the submission of new and material evidence. In addition, the January 2005 statement of the case did not provide the appellant with pertinent law relating to new and material evidence. Accordingly, remand is required so that the RO may provide such notice. Accordingly, the case is remanded for the following action: 1. The RO must provide notice to the appellant of what information or evidence is needed in order to substantiate her claims on appeal, and it must assist the appellant by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. This notice must also comply with the requirements contained in Kent v. Nicholson, 20 Vet. App. 1 (2006) and 38 C.F.R. § 3.156(a) with regard to the appellant's claim to reopen the issue of entitlement to service connection for the cause of the veteran's death. 2. After completing the above action, and any other development as may be indicated by any response received, the claims on appeal must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the appellant and her representative. If the appellant's claim to reopen the issue of entitlement to service connection for the cause of the veteran's death remains denied, the supplemental statement of the case must provide the appellant with the pertinent law relating to her claim to reopen. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2007).