Citation Nr: 0810837 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-40 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity compensation (DIC) under 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from August 1946 to October 1954 and from January 1955 to April 1967. He died in December 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant appeared for a Board hearing before the undersigned Acting Veterans Law Judge in January 2008. 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 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter only in May 2006, after she had perfected her appeal in this case. At no point was the case subsequently readjudicated in a Supplemental Statement of the Case. In view of the Mayfield line of decisions, this constitutes a procedural error requiring a remand for correction. 38 C.F.R. § 19.9 (2007). Moreover, as this appeal concerns a claim of service connection for the cause of the veteran's death, the Board has also considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the Court determined that VCAA notification in such cases must 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. Id. The May 2006 VCAA letter does not meet all of these criteria and will need to be corrected by a more thorough letter. Accordingly, the case is REMANDED for the following action: 1. The appellant should be sent a corrective VCAA letter, encompassing: (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. The letter should also provide the necessary VCAA notification for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. 2. Unless the appellant's appeal can be granted in full, she and her representative should be furnished with a Supplemental Statement of the Case addressing the claims on appeal. The appellant should be allowed a reasonable period of time in which to respond before this case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2007). _________________________________________________ JOHN L. PRICHARD Acting 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).