Citation Nr: 1112349	
Decision Date: 03/29/11    Archive Date: 04/07/11

DOCKET NO.  08-35 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and daughter




ATTORNEY FOR THE BOARD

G. E. Wilkerson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1943 to February 1946.  He died in January 2007.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

Review of the record reveals that this case must be remanded to ensure due process before the Board may adjudicate the claim on the merits.

The Board notes that this case was previously before the Board in October 2010 and, at that time, a medical expert opinion from a VA physician specialist was requested.  In December 2010, the Board received the requested opinion from the Chief of the Pulmonary Section of the Miami VA Healthcare System.  The Board subsequently notified the appellant in a  December 2010 correspondence that the requested medical opinion had been received, enclosed a copy of the medical opinion, and informed the appellant that she had sixty days from the date of the letter to submit additional evidence or argument in support of her claim.  See 38 C.F.R. § 20.903.  The RO also explained in this correspondence that the appellant had the right to have newly submitted evidence along with the evidence of record considered by the RO for review and for issuance of a Supplemental Statement of the Case (SSOC) or, in the alternative, she could waive in writing her right to initial RO consideration of any new evidence she submitted, and request that the Board proceed with adjudication of his appeal without remanding her case to the RO.

The record shows that additional medical evidence, namely a January 2007 report from the Franciscan Health System, an additional lay statement, and various internet medical articles addressing pulmonary and respiratory diseases and their causes.  The appellant specifically indicated in the Medical Opinion Response Form, dated in January 2011, that she wanted her case remanded to the RO for review of the newly submitted evidence.  Because the appellant has specifically asked to have her case remanded, and has declined to provide a waiver of her right to have the RO review the additional evidence in the first instance, the Board must remand this case to the RO for its due consideration and the issuance of a SSOC reflecting such consideration with respect to the issue on appeal.  See 38 C.F.R.        § 20.1304(c). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

The appellant's claim should be readjudicated with consideration of any evidence received since the October 2008 SOC. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and/or her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



_________________________________________________
WAYNE M. BRAEUER
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).