Citation Nr: 1323883 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 13-15 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1946 to April 1947 and from December 1949 to October 1979. He died in June 1983, and the appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2011 by the RO (Regional Office) in St. Paul, Minnesota. 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 has appealed the denial to reopen the application for service connection for cause of the Veteran's death. The RO denied reopening the appellant's claim for entitlement to death benefits in May 2011. She did not appeal that denial and it became final. The appellant submitted a claim to reope in June 2011 that was denied in August 2011. A March 2011 Veterans Claims Assistance Act (VCAA) notice letter informed the Veteran of the basic provisions of the VCAA; however, the record reflects that the appellant has not received sufficient notice of the requirements governing new and material claims and dependency and indemnity compensation (DIC) claims. The appellant should be apprised of the VCAA notice requirements governing new and material evidence claims, which require a specific notice letter that: (1) notifies the claimant of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) and any applicable legal precedent. Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice provided in March 2011 did not inform the appellant of the criteria for the underlying claim for service connection. The Kent requirements are even more difficult to comply with in this case because the claim is one for entitlement to service connection for the cause of the Veteran's death, a type of claim which has its own unique VCAA notice requirements. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007). Pursuant to Hupp, the appellant should also be provided (1) a statement of the conditions for which a veteran was service-connected at the time of his or 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 (2007). The notice provided in March 2011 did not address the Hupp requirements. As such, a remand is warranted so the Veteran can receive notice compliant with the holdings in Hupp and Kent. 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 a VA letter regarding her claim to reopen service connection for the cause of the Veteran's death based on new and material evidence pursuant to the decisions in Kent and Hupp. Notice must include information on the new and material evidence needed to reopen the previously denied claims, identifying the correct bases for prior denials, and information on how to establish service connection for the cause of the Veteran's death. 2. The appellant must be informed that if there is evidence that the Veteran had primary lung cancer or oat cell cancer, that must evidence must be submitted by her. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, the RO should issue an SSOC. 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). _________________________________________________ H. N. SCHWARTZ 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).