Citation Nr: 0811734 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-27 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Fuller, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1968. He died in July 1983 and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran's appeal was previously before the Board in April 2006, at which time the Board remanded the case for further action by the originating agency. The case has been returned to the Board for further appellate action. As previously noted in April 2006, the appellant, in her January 2002 statement, claimed that the veteran contracted hepatitis as a result of his active duty in the Republic of Vietnam, and that the veteran's hepatoma (listed on the death certificate as the cause of death) was caused by his hepatitis and/or his exposure to Agent Orange. Neither the February 2003 rating decision, the July 2004 statement of the case, nor the October 2006 statement of the case addressed the appellant's claim that service-connected hepatitis was the cause of the veteran's death. Accordingly, the claim is again referred back to the RO for appropriate action. 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 In the April 2006 remand, the Board noted that the appellant was not provided with the notice required under 38 U.S.C. § 5103(a), with respect to her claim to reopen her July 1983 claim that exposure to herbicides while on active duty in the Republic of Vietnam caused the veteran's death. Accordingly, the Board directed the RO to provide the appellant with notice, pursuant to 38 U.S.C. § 5103(a), concerning her claim that exposure to herbicides in the Republic of Vietnam was the cause of the veteran's death. The originating agency has not complied with this remand directive. In this regard, the Board notes that in the May 2006 notice letter, the appellant was advised that she needed to submit evidence concerning her claim that exposure to herbicides in the Republic of Vietnam was the cause of the veteran's death, and that she could provide medical evidence not previously considered, but she was not advised in the context of the previous denial of what would be necessary to substantiate the particular element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition, since the appeal was remanded in April 2006, the United States Court of Appeals for Veterans Claims (Court) has issued a decision concerning the notice to be given in claims for Dependency and Indemnity Compensation (DIC) benefits. In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the Court held that in the context of a claim for DIC benefits, section 5103(a) notice 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. The appellant has not been given this specific notice. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. The appellant should be provided notice required under 38 U.S.C.A. § 5103(a), to include the notice specified by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), concerning the previous denial of her claim that exposure to herbicides in the Republic of Vietnam was the cause of the veteran's death, and Hupp v. Nicholson, 21 Vet. App. 342 (2007), concerning her claim for DIC, and an appropriate amount of time to provide new and material evidence. 2. If new evidence is received, the RO should re-adjudicate the claim. If the claim remains denied, issue a supplemental statement of the case (SSOC). After the veteran has been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. 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). _________________________________________________ MARY 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).