Citation Nr: 1321551 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 09-27 922 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for hypertension, for accrued benefits purposes. REPRESENTATION Appellant represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from July 1956 to January 1979. He died in 2008 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Roanoke RO. The appellant requested a Central Office hearing in her July 2009 substantive appeal; however, she withdrew this request in July 2012. A review of the electronic Virtual VA paperless claims process system does not reveal any pertinent evidence or information that is not present in the claims file. 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 filed a claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits in August 2008 and VA sent her a Veterans Claims Assistance Act (VCAA) notice letter in September 2008. Although the letter did inform the appellant of the generally applicable VCAA provisions regarding VA's duty to notify and assist, as well as the general elements required to substantiate DIC claims, the notice did not fully comply with the law. In claims for DIC benefits, appropriate notice from the RO to the appellant must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The September 2008 notice letter did not indicate whether or not service connection was in effect for any disability when he died - service connection was in effect for diabetes mellitus and prostate cancer. Further, the appellant was not notified as to how VA assigns disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also did not properly adjudicate the appellant's accrued benefits claim. The RO only addressed the May 2008 rating decision, but failed to specifically address the Veteran's petition to reopen the claim for service connection for hypertension, which was received in September 2007 but not adjudicated. Thus, the matter must be remanded for consideration. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with notice that complies with the requirements of Dingess and Hupp (cited to above) that includes: a. a statement of the service-connected disabilities that were in effect at the time of the Veteran's death; b. an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability; c. an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected; and d. information regarding the assignment of ratings and effective dates that is compliant with Dingess. 2. Readjudicate the appellant's claims and directly address the pending petition to reopen the claim of service connection for hypertension with regard to possible accrued benefits. If any benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must set forth any additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ VITO A. CLEMENTI 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).