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).