Citation Nr: 0812801 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-22 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 (West 2002 & Supp. 2007). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and son ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from November 1943 to May 1946. He died in March 2002. The appellant is the veteran's spouse. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an August 2002 rating decision of the VA Regional Office (RO) in Chicago, Illinois that denied entitlement to service connection for the cause of the veteran's death and entitlement to DIC. This case was advanced on the Board's docket for good cause. See 38 U.S.C.A. § 7107 (West 2002 & Supp. 2002); 38 C.F.R. § 20.900(c) (2007). The case was remanded by Board decisions dated in September 2004 for further development, and again in July 2007 to schedule a personal hearing. Following review of the record, the appeal is once more 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 record reflects that the appellant was afforded a videoconference hearing in April 2004 before a Veterans Law Judge sitting at Washington, DC. However, the Judge who conducted the April 2004 hearing left the Board. Pursuant to 38 U.S.C.A. § 7107(c) (West 2002 & Supp. 2007)) (providing that the Veterans Law Judge designated to conduct a hearing will participate in the final determination of the claim), the appellant elected to have another hearing, and this one was conducted by videoconference in September 2007. In a letter dated in March 2008, the Board regretfully informed the appellant that technical problems had prevented a recording the hearing such that a written transcript could not be produced. She was asked whether she desired another hearing. In a response received in March 2008, the appellant stated that she would appear for another videoconference hearing before a Veterans Law Judge at her local RO. Accordingly, a hearing will be scheduled. Additionally, during the pendency of this appeal the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Hupp v. Nicholson, 21 Vet. App. 342 that specifies VA's notice obligations in the context of a claim for DIC benefits under 38 U.S.C.A. § 1310 (West 2002 & Supp. 2007). In general, the provisions of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) requires that notice for a DIC claim 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 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 Board finds that given the deficiency in the most recent duty-to- assist letter in this regard in July 2005, the Board will remand the case for the issuance of notice compliant with 38 U.S.C.A. § 5103(a). The case is therefore REMANDED for the following actions: 1. The RO must review the claims folder and ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) are fully complied with and satisfied. See 38 C.F.R. § 3.159 (2007). The appellant should be sent notice that complies with 38 U.S.C.A. § 5103(a) in which she should be advised of the disorders for which service connection was in effect at the time of the veteran's death, as well as an explanation as to what information or evidence is necessary to substantiate a claim for service connection for the cause of a veteran's death. See Hupp, supra. Proper notice should also include an explanation of the information or evidence needed to establish an evaluation and effective date for the claim on appeal as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the appellant for a videoconference hearing at the RO before a Veterans Law Judge. After the hearing is completed, the case should be returned to the Board in accordance with appellate procedures. 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). _________________________________________________ F. JUDGE FLOWERS 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).