Citation Nr: 0811769 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-24 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence to reopen a claim for service connection for the cause of the veteran's death has been received. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active duty from October 1965 to July 1967, and served in the Republic of Vietnam during the Vietnam era. He died in April 1990. The appellant is his widow. In an August 1999 decision, the Board denied the appellant's claim for service connection for the cause of the veteran's death. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating action of the Newark, New Jersey regional office (RO) of the Department of Veterans Affairs (VA). This decision found that no new and material evidence to reopen the appellant's previously denied claim for service connection for the cause of the veteran's death had been received. In March 2003, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2004, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2004. This appeal was previously before the Board in January 2008, when it was remanded to the RO for a videoconference hearing. The appellant was afforded a hearing in March 2008, and a transcript of this hearing is in the claims folder. Unfortunately, the reasons expressed below, the matter on appeal must again be remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action on her part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) held that, in the context of an application to reopen a previously and finally denied claim, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. Kent v. Nicholson, 20 Vet. App. 1, (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. The appellant has never been provided with such a notice letter, and the Board is unable to identify any statement or testimony from her that would demonstrate actual knowledge of this information. In addition, the Court has held that, in general, 38 U.S.C.A. § 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a cause of death 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 (2007). In addition, the Board notes that notice of the type of information and evidence necessary to establish an evaluation and effective date for the benefits on appeal has not been provided in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, corrective notice can be provided on remand. The original claims folder was lost, and the file has been rebuilt. It does not appear that the appellant has been requested to submit copies of records that were considered in the March 1999 Board decision and which might be in her possession. Records related to the veteran's treatment, and final hospitalization at the Clara Maass Medical Center from February April 1990 might be available from either the appellant or the original source, as might the veteran's death certificate. In addition, there is no indication that attempts have been made to obtain copies of the May 1998 and October 1998 VA opinions cited in this Board decision. Copies of these opinions may still be available at the VA medical facility from which they were obtained. Accordingly, the case is REMANDED for the following action: 1. Send the appellant and her representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) which includes (1) a statement of the conditions, if any, for which the veteran was service- connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of death based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of death based on a condition not yet service-connected. The notice should also articulate (1) the basis of the March 1999 denial of service connection for the cause of the veteran's death (lack of competent evidence linking the cause of death to service including herbicide exposure); (2) describe the evidence and information necessary to reopen her claim; (3) and notify the appellant of the evidence required to establish entitlement to the underlying claim. The notice should also include an explanation of the information or evidence needed to establish an evaluation and effective date for the claim on appeal. 2. Request that the appellant provide copies of the veteran's death certificate and the medical records related to the veteran's treatment, hospitalization and death at the Clara Maass Medical Center from February to April 1990. Provide her with an opportunity to submit an authorization to obtain these private medical records if necessary. 3. Contact the VA medical center from which the May 1998 and October 1998 medical opinions were obtained and determine if copies of these opinions are available. If so, obtain these copies and associate them with the claims folder. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until otherwise notified. 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). _________________________________________________ Mark D. Hindin 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).