Citation Nr: 1303544	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  04-10 003	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death, to include entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318.  


REPRESENTATION

Appellant represented by:	Patricia M. Dunn, attorney

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from January 1959 to March 1962.  He died in December 2001.  The appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Louisville, Kentucky.  

In December 2006, the Board denied this claim.  The appellant appealed this denial to the U.S. Court of Appeals for Veterans Claims (Court).  In November 2009, the Court vacated the Board's denial of the claim for service connection for the cause of the Veteran's death, and remanded this issue to the Board.  

This issue was previously remanded by the Board in September 2010 and November 2010.  

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 seeks service connection for the cause of the Veteran's death.  In November 2012, the appellant's representative submitted a brief along with attached medical treatise excerpts.  The representative also stated she was a nurse practitioner and thus qualified to offer medical opinion evidence.  This fact renders her opinions within the November 2012 brief to be pertinent opinion evidence, and not just lay arguments.  Generally, pertinent evidence received by VA must first be considered by the agency of original jurisdiction (AOJ), although such AOJ consideration may be waived by the appellant.  See 38 C.F.R. § 20.1304 (2012).  

In March 2012, the appellant and her representative submitted additional pertinent evidence directly to the Board accompanied by a waiver of AOJ consideration.  Upon submission of the November 2012 brief, however, they opted not to include such a waiver, although their prior actions indicate they were aware of this option.  

Accordingly, the case is REMANDED for the following action:

Readjudicate the claim in light of all additional evidence added to the record.  If any benefit sought on appeal remains denied, the appellant and her representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review.  

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 or by the 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. 2012).



_________________________________________________
C. Kedem
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) (2012).