Citation Nr: 1322041 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 12-28 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES Whether new and material evidence has been received with respect to a claim of entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include service connection for cause of the Veteran's death and death pension benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1943 to September 1945. He passed away on November 21, 2008; the appellant in this case is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant timely appealed that issue. In this case, the appellant was issued a statement of the case with regards to claim for DIC benefits in March 2010. The appellant had until September 2010 to submit new evidence or to complete appeal of that issue. No substantive appeal, VA Form 9, was received prior to September 2010. Likewise, while the Board notes that a new claim was received in March 2010 for DIC benefits, all of the evidence received with that claim was previously of record and does not constitute new evidence, or is not considered material. Specifically, the Veteran's death certificate and the marriage license were already of record and are therefore redundant evidence. The financial information submitted at that time is not material to the appellant's claim with regards to eligibility for DIC benefits. As the appellant did not properly complete appeal of the DIC benefits claim following issuance of the March 2010 statement of the case within the proper appeal period (i.e., prior to September 17, 2010), the September 2009 rating decision is considered final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Therefore, new and material evidence is required to reopen the claim for DIC benefits, regardless of how the RO characterized the issue. See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. 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). 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 claims that there was clear and unmistakable error (CUE) committed in the January 1984 rating decision, which denied entitlement to TDIU at that time. The Veteran was in receipt of a total disability rating based on individual unemployability for more than 9 years at the time of his death. The raised CUE claim has the possibility of creating entitlement to the claimed 38 U.S.C.A. § 1318 benefits sought on appeal. The CUE claim has not been addressed by the RO at this time; therefore, the Board finds that the DIC claim on appeal is intertwined with this CUE claim and a remand of this claim is necessary so that the RO/AMC may address the CUE claim in the first instance. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The appellant was sent a deficient Veterans Claims Assistance Act of 2000 (VCAA) notice letter in January 2012, which noted that she needed to provide new and material evidence. The letter did not provide a list of the Veteran's service-connected disabilities at death (as was necessary to notify the appellant regarding the criteria needed to establish the underlying claim. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Thus, in light of the need to remand, the Board notes that updated notice should also be provided to the appellant on appeal in order to cure any notice error in this case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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) (2012). Expedited handling is requested.) 1. Send the appellant appropriate notice with respect to her claim of entitlement to DIC benefits, to include entitlement to service connection for cause of the Veteran's death and entitlement to death pension benefits under 38 U.S.C.A. § 1318. Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Hupp v. Nicholson, 21 Vet. App. 342 (2007), and should specifically present a list of service-connected disabilities at the time of the Veteran's death. 2. The RO/AMC should adjudicate the raised CUE claim associated with the underlying claim for DIC benefits as raised by the appellant and her representative on appeal. 3. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of entitlement to DIC benefits, to include entitlement to cause of the Veteran's death and entitlement to death pension benefits under 38 U.S.C.A. § 1318. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 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). _________________________________________________ THOMAS J. DANNAHER 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).