Citation Nr: 0814210	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  06-15 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York


THE ISSUE

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


INTRODUCTION

The veteran served on active duty from January 1968 to August 
1970, and from December 1990 to June 1991.  He died in 
February 2005.  

This appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify you if 
further action is required on your part.




REMAND

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159 and 3.326(a) (2007).  Because this 
case involves a determination as to the basic legal 
requirements to establish service connection for the cause of 
the veteran's death, VCAA may not apply.  See Cacalda v. 
Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not 
evidence, the appeal should be terminated for lack of legal 
merit or entitlement); accord Luallen v. Brown, 8 Vet. 
App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), 
appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995).

The veteran and the appellant married in October 2004.  The 
veteran died in February 2005.  At the time, the couple had 
been married for less than six months.  There is no 
indication that a child was born of the union.  A surviving 
spouse may qualify for pension, compensation, or dependency 
and indemnity compensation if certain requirements regarding 
the length of marriage and/or birth of a child of the union 
are met.  Reference is made to 38 C.F.R. § 3.54 which states 
the requirements for entitlement to VA death pension, death 
compensation or indemnity and dependency compensation.  

It appears that the RO has failed to make a determination as 
to whether the basic eligibility requirements for entitlement 
to service connection for the cause of the veteran's death 
have been met.  The Board cannot proceed to adjudicate the 
merits of this claim until the basic eligibility requirements 
of the claim have been established.

In view of the foregoing the claim is remanded for the 
following actions:

1.  The AMC/RO is to undertake any 
necessary development and then 
adjudicate the issue of whether the 
appellant meets requirements for basic 
eligibility for entitlement to VA death 
pension, or death compensation or 
dependency and indemnity compensation.   

2.  If any benefit sought on appeal, for 
which a notice of disagreement has been 
filed, remains denied, the appellant 
should be furnished a statement of the 
case, advised of her appellate rights and 
given the opportunity to respond thereto.


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 
unless otherwise notified.  VA will notify the appellant if 
further action is required on his or her part.

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 The 
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), 
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 
5109B, 7112).


		
	RENÉE M. PELLETIER
	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).