Citation Nr: 1300848 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 05-30 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to January 1946, and had additional service in the National Guard. The Veteran passed away in March 2002; the appellant seeks benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 decision of a Department of Veteran's Affairs (VA) Regional Office (RO) that denied the appellant's claim of entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1151. The appellant testified before the Board at three separate hearings (in August 2007, April 2009, and December 2011) that were each held at the RO. A transcript of each hearing has been associated with the claims file. In February 2012, the appellant filed a motion to advance her appeal on the Board's docket due to financial hardship, pursuant to 38 C.F.R. § 20.900(c)(1) (2012). The appellant, through her representative, indicated that she was unable to pay the rent for her apartment, and stated that her rent currently was $3598.80 in arrears. She stated that she was unable to pay her rent due to the discontinuance of her Social Security Administration (SSA) benefits. In support of her assertions, she included a copy of the February 6, 2012 notification from SSA of her lack of continued entitlement to SSA benefits beginning in February 2012, and a copy of correspondence from her apartment building demonstrating that as of January 18, 2012, her account was $3598.80 in arrears. The evidence submitted in support of the appellant's motion to advance her case on the Board's docket indicates that the appellant is having financial difficulties but does not sufficiently confirm that she is under severe financial hardship. Although the evidence reflects that she is no longer in receipt of SSA benefits, and that her rent is in arrears, it is unclear whether the appellant has an alternative source of income, or whether she has assets that would preclude a finding of severe financial hardship. As such, the Board declines to grant the appellant's motion. The Board notes, however, that the docket number assigned to the appellant's appeal is among the oldest of docket dates currently being worked by the Board, such that the appellant's claim is already among those that the Board must address with expedience. As such, the denial of the motion to advance the claim on the Board's docket does not prejudice the appellant. Lastly, in June 2012 correspondence, the Board notified the appellant that the Acting Veterans Law Judge who conducted the August 2007 hearing was no longer employed by the Board. The Board also informed the appellant that the other two Veterans Law Judges (VLJs) who had conducted hearings remained employed by the Board and that these two judges, along with a third, yet to be assigned VLJ, would review the appeal and sign a panel decision. See 38 U.S.C.A. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2012). The Board then offered the appellant the opportunity to have an additional hearing before a fourth VLJ who would be the third member of the panel of three judges who would decide her appeal. She was informed that an additional hearing was entirely optional and was not required to proceed with an adjudication of her appeal. In correspondence received from the appellant in July 2012, she declined the opportunity for an additional hearing. She expressly indicated that she was waiving her right to appear at an additional hearing before a fourth VLJ who would be assigned to decide her appeal, and requested that the Board consider her case on the evidence of record and proceed without delay to issue a panel decision concerning the issue on appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (holding that a claimant is entitled to a hearing before every member of the panel that will decide his appeal). As such, the appellant's claim will be decided by a panel appointed by the Acting Chairman. See 5 U.S.C.A. § 3345 (West 2002); 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3. 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 contends that VA failed to properly treat and diagnose her husband's lung cancer in a timely manner, contributing to his demise. On this basis, she seeks compensation for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151. Regrettably, additional development is needed prior to rendering a decision on appeal as the requirements of VA's duties to notify the appellant have not been satisfied. The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify a claimant of the evidence that is necessary, or would be of assistance, in substantiating his or her claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The appellant submitted her claim for DIC benefits in April 2004. In February 2005, she clarified that her claim encompassed a claim of entitlement to compensation for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C.A. § 1151. Although VA provided the appellant notice that she was required to show that the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care or medical treatment at the time of the initial adjudication of her claim in an August 2005 statement of the case and in a subsequent statement and supplemental statement of the case, VA has not yet provided her with a single notice containing all of the information referred to in the statute. See Mayfield v. Nicholson, 444 F.3d 1328, 1332 (Fed. Cir. 2006). As VA cannot in this instance demonstrate that the defective notice did not result in prejudice to the appellant, a remand is required in order to correct this deficiency. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that sets forth the evidence necessary to establish compensation benefits under 38 U.S.C.A. § 1151, including the notice required under Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006) (notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded). 2. Then, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case and give the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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. 2012). K. OSBORNE S. S. TOTH Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ LAURA H. ESKENAZI 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) (2012).