Citation Nr: 0811396	
Decision Date: 04/07/08    Archive Date: 04/23/08

DOCKET NO.  05-28 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Phoenix, Arizona


THE ISSUE

Entitlement to service connection for the cause of death of 
the veteran.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and her son




ATTORNEY FOR THE BOARD

Amy R. Grasman, Associate Counsel 


INTRODUCTION

The veteran served on active duty from November 1943 to March 
1946.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from a November 2004 RO decision.  

In June 2007, the appellant testified in a Travel Board 
hearing in front of the undersigned Veterans Law Judge.  The 
transcript of the hearing is associated with the claims file 
and has been reviewed.

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 appellant submitted additional medical evidence in June 
2007 (separately from evidence presented at the hearing) 
consisting of private medical records.  The evidence was not 
previously considered by the RO and was not accompanied by a 
waiver of the appellant's right to initial consideration of 
the new evidence by the RO.  See 38 C.F.R. §§ 19.9, 
20.1304(c) (2007).  The Board sent the appellant a letter in 
January 2008 explaining her right to choose consideration by 
the RO and her right to waive RO consideration.  To date, a 
response has not been received by the Board.  In 
consideration of the foregoing, the Board finds that a remand 
to the RO is necessary to ensure due process in this case.

Accordingly, the case is REMANDED for the following action:

1.	Please provide the appellant with an 
updated VCAA notice, VA's duties there 
under, and the delegation of 
responsibility between VA and the 
appellant in procuring the evidence 
relevant to a claim of entitlement to 
service connection for the cause of death 
of the veteran, including which portion of 
the information and evidence is to be 
provided by the appellant and which 
portion VA will attempt to obtain on 
behalf of the appellant as required by 38 
U.S.C.A. §§ 5103, 5103A (Supp. 2007) and 
38 C.F.R. § 3.159 (2007).  The appellant 
should be afforded the appropriate period 
of time for response to all written notice 
and development as required by VA law.

2.	Please also refer the claims folder to 
an appropriate medical specialist for 
review and request that physician to 
provide an opinion whether the veteran's 
epilepsy caused or substantially 
contributed to his death.  

3.	 After any additional notification 
and/or development deemed necessary is 
undertaken, the RO should readjudicate the 
claim with consideration of any evidence 
received since the August 2005 
supplemental statement of the case, 
including the medical records received on 
June 4, 2007.  If any benefit sought on 
appeal remains denied, the appellant 
should be provided with a supplemental 
statement of the case that contains notice 
of all relevant actions taken, including a 
summary of the evidence and applicable law 
and regulations considered pertinent to 
the issue.  An appropriate period of time 
should be allowed for response by the 
appellant.  Thereafter, the case should be 
returned to the Board for further 
appellate consideration, if in order.
	

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).



_________________________________________________
John E. Ormond, Jr.
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).