Citation Nr: 1324581	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  09-00 336A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes.

2.  Entitlement to service connection for the cause of the Veteran's death.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from July 1959 to June 1980.  The appellant seeks surviving spouse benefits.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that denied the appellant's claims.

The appellant later testified at a hearing before the undersigned Acting Veterans Law Judge in March 2012.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the appellant if further action is required.


REMAND

A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached.  

In January 2013, the Board referred the appellant's claim for service connection for the cause of the Veteran's death for a VA expert medical opinion.  In March 2013, an expert medical opinion was submitted to the Board by the chief medical doctor of hematology/oncology at the VA Medical Center in Phoenix, Arizona.  

In April 2013, a copy of the expert medical opinion and a letter from the Board were sent to the appellant.  The letter advised the appellant that she had 60 days to submit additional evidence.  

Later in April 2013, the appellant submitted a statement and a copy of a Board decision for another Veteran which granted similar benefits to those that the appellant seeks.  The appellant indicated that she did not waive RO consideration of the newly submitted evidence.  

Additionally, in May 2013, the Veteran's representative submitted a motion to remand for agency of original jurisdiction (AOJ) consideration of evidence.  The representative indicated that the appellant did not waive AOJ consideration of the April 2013 expert medical opinion.  

In light of the fact that the appellant and her representative have indicated that the appellant does not waive AOJ consideration of the newly submitted evidence, a remand is necessary.  

Concerning the claim of entitlement to service connection for cancer of the right oropharynx (claimed as throat cancer due to exposure to herbicides) for accrued benefits purposes, the Board finds that this claim is inextricably intertwined with the issue concerning the cause of the Veteran's death.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

Readjudicate the claims based on the entirety of the evidence, including all evidence pertinent to the claims that the AOJ has not previously reviewed.  If any determination remains unfavorable to the appellant, issue a supplemental statement of the case, allow the appropriate time for response, and thereafter return the case to the Board for further appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).




_________________________________________________
Michael J. Skaltsounis
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).