Citation Nr: 1132166	
Decision Date: 09/01/11    Archive Date: 09/12/11

DOCKET NO.  06-14 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Los Angeles, California


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death.


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

Appellant is the surviving spouse of the Veteran, who had active service from March 1943 to November 1945.  The Veteran died in October 2003.  

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

A remand is required in this case to ensure that legally adequate notice is provided.  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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  

In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (CAVC) held, inter alia, that in the context of a claim for service connection for the cause of a veteran's death for the purpose of DIC benefits, the VCAA notice must include: (1) a statement of the disabilities, 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 disability; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disability not yet service connected.  Id. at 352-53.  

A review of the record shows that the appellant was issued a due process letter under the VCAA in September 2006; however, a review of that letter discloses that it does not provide the notice required.  Specifically, it does not contain a statement of the disabilities for which the Veteran was service connected at the time of his death or an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability.

Accordingly, the case is REMANDED for the following action:

1.  Ensure that all notification required by the VCAA is completed.  The VCAA notice must specifically include: (1) a statement of the disabilities for which the Veteran was service connected; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a service-connected disability; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on disability not yet service connected.  Hupp, 21 Vet. App. at 352-53.

2.  After completing the requested action, and any additional notification and/or development deemed warranted, the issue of entitlement to DIC based on service connection for the cause of the Veteran's death should be readjudicated in light of all the evidence of record.  If the benefit sought on appeal remains denied, the RO/AMC should furnish to the appellant an appropriate Supplemental Statement of the Case, and should afford the appellant the appropriate time period for response.

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).

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).



_________________________________________________
J. Parker
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).