Citation Nr: 0811383 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-08 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from April 1967 to March 1969. He died in November 2002. The appellant in this case is the veteran's surviving spouse. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. As set forth in more detail below, a remand of this matter is required. 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 Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence she is expected to provide, as well as the information and evidence VA will seek to obtain on her behalf. In addition, VA must advise a claimant to provide any additional evidence in her possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The Court has further held that in the context of a claim for DIC benefits, a VCAA notice must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or 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. Hupp v. Nicholson, 21 Vet. App. 342, 352- 53 (2007). A review of the record in this case indicates that the appellant has not been given the required VCAA notification. Thus, a remand is necessary. Additionally, the Board notes that a remand is necessary to ensure that the appellant receives the benefit of proper representation. See 38 C.F.R. § 20.600 (2007) (providing that a claimant must be accorded full right in all stages of the appeal by an accredited representative). A review of the record in this case indicates that the appellant designated AMVETS as her accredited representative. See December 2002 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative. There is no indication that AMVETS has withdrawn as her representative in accordance with 38 C.F.R. § 20.608 (2007). Despite this, AMVETS has failed to conduct a review of the appellant's case. In a March 2008 memorandum, a national AMVETS representative recommended that this matter be returned to the RO for the purpose of affording the local AMVETS representative the opportunity to compete a review of the appellant's case. Accordingly, the case is REMANDED for the following action: 1. The appellant and her representative should be provided with appropriate notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation as to the evidence and information required to substantiate her claim for DIC, as well as the information or evidence needed to establish a disability rating and effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. In accordance with applicable procedure, the RO should provide the appellant's representative with the opportunity to review the claims folder and prepare a VA Form 646, or written argument in lieu thereof. 3. After conducting any additional development deemed necessary based on any response to the VCAA letter, the RO should readjudicate the claims, considering all the evidence of record. If the decision remains unfavorable, the appellant and her representative should be provided with a supplemental statement of the case and given an appropriate opportunity to respond. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).