Citation Nr: 1127370 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 08-00 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to September 1988. He died in November 2000, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appeal is 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 appellant previously filed a claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits, but was denied entitlement to service connection for the cause of the Veteran's death in a November 2001 rating decision. The appellant was notified of that decision and of her appellate rights; however, she did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Appellant filed a new claim for service connection for the cause of the Veteran's death in September 2006. A notice letter was then sent to her the following month, which informed her of the general provisions regarding VA's duty to notify and assist, as well as the general elements required to substantiate a claim for service connection for the cause of the Veteran's death. However, the letter did not advise her that she needed to submit new and material evidence in order to reopen the claim. Nor did the letter explain why her prior claim had been denied. The Court of Appeals for Veterans Claims (Court) held in Kent v. Nicholson, 20 Vet. App. 1 (2006), that the law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. In regard to the underlying claim for service connection for the cause of the Veteran's death, the Board notes that appropriate notice from the RO to an appellant 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The October 2006 notice did not list the conditions for which the Veteran was service-connected at the time of his death. Nor did the letter specifically indicate what evidence was needed to substantiate the claim based on a condition not yet service-connected. Further, in regards to service connection claim, the appellant was not notified as to how VA assigns disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds that a remand is necessary to ensure that the appellant is provided proper notice in connection with her claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must afford the Appellant an additional opportunity to submit any information that is not evidenced by the current record. If the Appellant identifies any VA, non-VA, or other records pertinent to the claim on appeal, she must be provided with the necessary authorizations for the release of any private records. The RO/AMC must then obtain these records and associate them with the claims folder and notify the appellant if any records sought were unavailable. While providing the appellant with this opportunity to submit additional information, the RO/AMC must ensure that its notice meets the requirements of Dingess, Kent, and Hupp (cited to above): a. The RO/AMC must provide the Appellant with corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), in compliance with the holding of Kent (cited to above). The notice must advise her that new and material evidence is required to reopen the claim and explain what constitutes new and material evidence. The notice should also identify the bases for the denial in the November 2001 rating decision and describe the evidence necessary to reopen the claim of entitlement to service connection for the Veteran's cause of death. b. The RO/AMC must ensure this notice also meets the requirements of Hupp (cited to above) in regard to the need to inform a DIC claimant of (1) a statement of the conditions, if any, for which a veteran was service connected at the time of 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. c. The RO/AMC must ensure this notice also includes information in compliance with Dingess (cited to above), as to the assignment of disability ratings and effective dates. 2. The RO/AMC must then readjudicate the Appellant's claim. If the benefits sought on appeal remain denied, the Appellant and her authorized representative must be provided a supplemental statement of the case (SSOC) that readjudicates her claim. The SSOC must set forth that any additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Appellant are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 2010). _________________________________________________ JESSICA J. WILLS Acting 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) (2010).