Citation Nr: 1031746 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 09-06 551 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure (for accrued benefit purposes). 3. Entitlement to service connection for right tonsil cancer, to include as due to herbicide exposure (for accrued benefit purposes). 4. Entitlement to service connection for colon cancer, to include as due to herbicide exposure (for accrued benefit purposes). 5. Entitlement to service connection for lung cancer, to include as due to herbicide exposure (for accrued benefit purposes). 6. Entitlement to service connection for right arm nerve damage, to include as secondary to right tonsil cancer (for accrued benefit purposes). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1967, and from December 1967 to September 1973. He died in March 2005. The appellant is his widow. This appeal to the Board of Veterans Appeals (Board) arises from a September 2005 rating action that denied service connection for the cause of the veteran's death; service connection for diabetes mellitus and for right tonsil, colon, and lung cancer, each to include as due to herbicide exposure (for accrued benefit purposes); and service connection for right arm nerve damage, to include as secondary to right tonsil cancer (for accrued benefit purposes). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant if further action is required. REMAND Considering the record in light of the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA) (38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009)), the Board finds that all notice and development action needed to render a fair decision on the claims on appeal has not been accomplished. Subsequent to the issuance of the last Supplemental Statement of the Case (SSOC) in August 2009, the appellant's representative submitted additional pertinent evidence in connection with the claims on appeal, and requested that this case be returned to the RO for readjudication with consideration thereof. 38 C.F.R. § 20.1304(c) (2009) provides that any pertinent evidence submitted by an appellant or representative which is accepted by the Board must be referred to the RO for review, unless this procedural right is waived by the appellant or her representative. Under the circumstances, the Board finds that this case must thus be remanded to the RO for readjudication with initial consideration of that additional evidence prior to a Board decision on appeal. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, this case is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority, including the new evidence submitted by the appellant's representative subsequent to the issuance of the last SSOC in August 2009. 2. If any benefit sought on appeal remains denied, the RO must furnish the appellant and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The appellant needs take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).