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).