Citation Nr: 0811145 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-41 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependents' educational assistance under 38 U.S.C. Chapter 35 (West 2002). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1970 and from September 1970 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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 Unfortunately, remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. The veteran died at Springhill Memorial Hospital from idiopathic pulmonary fibrosis in September 2003. Prior to the veteran's death in September 2003, he was service connected for incomplete right ulnar nerve palsy, 40 percent; tinnitus, 10 percent; residual, gunshot wound, right elbow, 10 percent; fracture, left distal wrist, noncompensable; and bilateral hearing loss, noncompensable. His combined rating was 50 percent. The United States Court of Appeals for Veterans Claims (Court) held in July 2007 in Hupp v. Nicholson, 21 Vet. App. 342, 352-53, that when adjudicating a claim for dependency and indemnity compensation (DIC), VA must perform a different analysis depending on whether a veteran was service-connected for a disability during his or her lifetime, and concluded generally, that 38 U.S.C.A. § 5103(a) notice for a DIC claim 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. Based on the Board's preliminary review of the claim for service connection for the cause of the veteran's death and the December 2003 and February 2004 notice provided to the appellant pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103a, 5107 (West 2002 & Supp. 2005) (VCAA), the Board finds that a remand is warranted so that the appellant can be provided with a new VCAA notice letter that complies with the Court's holding in Hupp. The appellant should be sent adequate VCAA notice concerning her Chapter 35 benefits claim as well. The appellant indicated in March 2004 that the Social Security Administration (SSA) had found the veteran to be 100 percent disabled before his death. Records considered by the SSA may be relevant to the appellant's claim for service connection for the cause of the veteran's death. Accordingly, they should be obtained. As stated above, the veteran died at the Springhill Memorial Hospital in September 2003. His terminal hospital records are not of record and should be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with a VCAA notice letter, noting (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 the DIC claim based on the veteran's previously service-connected conditions, and (3) an explanation of the evidence and information required to substantiate the DIC claim based on the conditions not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53. The appellant should also be sent VCAA compliant notice concerning her claim for Chapter 35 benefits. 2. Obtain a copy of any SSA decision denying or granting disability benefits to the veteran. Request from SSA copies of all the documents or evidentiary material that were used in considering the veteran' s claim for disability benefits. 3. Obtain the veteran's medical records, including his terminal hospital records, from the Springhill Memorial Hospital. 4. Thereafter, readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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. 2007). _________________________________________________ P. M. DILORENZO 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).