Citation Nr: 1316990 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 05-28 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Survivors' and Dependents' Educational Assistance (DEA) under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to May 1976. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. These issues were previously before the Board in December 2006, when the Board remanded the matters for additional development. In an April 2008 decision, the Board denied the Veteran's claim after further appellate review. The appellant appealed the April 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2008, the Court vacated the Board's April 2008 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). As a result, this appeal was again before the Board in August 2009, when the Board remanded the issues for further development. The appeal has now returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This 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 on his part. REMAND The Board remanded the issues on appeal in August 2009 specifically to obtain a finding as to whether the Veteran was exposed to asbestos while on active duty from May 1956 to May 1976. The RO was instructed to forward the service personnel records to the U.S. Army Liaison at the National Archives and Records Administration (NARA) in St. Louis, Missouri for the opinion. The record reflects that the RO sent the necessary request in September 2009, November 2009 and December 2009 to NARA. In correspondence dated in January 2010 and February 2010, the Chief, Archives II Textual Records Reference Staff, of the Textual Archives Services Division, of NARA, in College Park, Maryland, responded that there was no U.S. Army Liaison at their facility, and that the facility had no means from records in their custody to determine asbestos exposure. It was noted that the U.S. Army Liaison of NARA was at the National Personnel Records Center in St. Louis, Missouri, a facility also administered by NARA. The RO issued a letter dated in January 2010 to the National Personnel Records Center (NPRC) in St. Louis, Missouri requesting an opinion as to whether the Veteran had been exposed to asbestos while on active duty from April 1956 to May 1976, to further comply with the JMR and the Board Remand. In February 2010, the NPRC indicated that it could not respond to a request received directly from the RO; rather, a request for such information should be made through the Personnel Information Exchange System (PIES). For this reason, the request was returned without action. The record does not reflect that a PIES request was thereafter initiated by VA to NPRC for an opinion as to whether the Veteran had been exposed to asbestos while on active duty from April 1956 to May 1976. Further, in the context of a claim for dependency and indemnity compensation (DIC) benefits, notice 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 service connection cause of death claim based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a disorder not yet service connected. See 38 U.S.C.A. § 5103(a); see also Hupp v. Nicholson, 21 Vet. App. 342 (2007). The record does not reflect that the VCAA notice letters issued to the appellant in May 2003, June 2005 and February 2007 informed the appellant that service connection had not been established for any disability during the Veteran's lifetime, nor an explanation of the evidence and information required to substantiate a claim based on a disorder not yet service-connected. Additionally, the record does not reflect that the VCAA notice letters issued to the appellant in May 2003, June 2005 and February 2007 informed the appellant of the information and evidence necessary to substantiate a claim for entitlement to DEA. In view of the foregoing, the case is hereby remanded for the following action: 1. Issue a VCAA notice letter to the appellant which informs the appellant that service connection had not been established for any disability during the Veteran's lifetime, and provide an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the Veteran's death based on a disorder not yet service-connected, in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice letter must also apprise the appellant of the information and evidence necessary to substantiate a claim for entitlement to DEA benefits, to include the allocation of responsibility of the appellant and the VA in obtaining such information and evidence. 2. Initiate a request through the Personnel Information Exchange System (PIES) to NPRC for an opinion as to whether the Veteran had been exposed to asbestos while on active duty from April 1956 to May 1976. See February 18, 2010 letter from NPRC. The PIES request and response thereto from NPRC must be documented of record. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appropriate period to respond prior to returning the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ U. R. POWELL 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).