Citation Nr: 1326079 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-17 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits based on the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1960 to May 1962, in the Navy from May 1966 to May 1968, and in the Coast Guard from May 1969 to February 1971. The Veteran died in October 2008. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The Appellant seeks service connection for the cause of the Veteran's death and for accrued benefits. The Veteran died on October [redacted], 2008. The death certificate lists the cause of death as due to lung carcinoma, prostate carcinoma, hypertension, and scleroderma. During his lifetime, the Veteran was service-connected for anxiety neurosis The Appellant asserts that the Veteran's death was related to exposure to herbicides in service. After review of the record, further procedural and factual development is needed. Further VCAA notice is needed to comply with Hupp v. Nicholson, 21 Vet. App. 342 (2007). The service personnel records are incomplete for the first and second periods of service. And it is not clear from the record, whether the Veteran's ship, USS Conquest (MSO 488), was tied up in Da Nang. In July 2008, the Veteran signed a claim for aid and attendance, which was written by the Appellant. The Appellant stated that the Veteran was homebound and on oxygen. In the rating decision in July 2009, the RO denied the claim, because the Veteran had not filed a formal claim for aid and attendance. In March 2010, the Appellant's representative filed a notice of disagreement on the denial of aid and attendance. When there has been adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Appellant. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Ensure VCAA compliance, namely, notify the Appellant of the Veteran's service-connected anxiety neurosis and an explanation of the evidence and information required to substantiate the claim based on a service-connected disability and an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. Request from the proper custodian of federal records, the service personnel records for the Veteran's period of service in the Army from May 1960 to May 1962 and in the Navy from May 1966 to May 1968. If the records do not exist or further efforts to obtain the records would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 3. Ask the proper custodian of naval records: a). Whether the Veteran's ship, USS Conquest (MSO 488), was tied up at a pier in Da Nang as opposed to anchorage in the harbor? According to the ship's deck log, the ship anchored in Da Nang harbor on June 19, 1967, at anchorage one; on August 2, 1967, at the same anchorage; and on November 13, 15, and 19, 1967. b). Whether the USS Conquest (MSO 488) was in the path of a herbicide spray run on June 19, 1967, and on August 31, 1967, as shown on an exposure report from the Joint Service Environmental Support Group (JSESG), and, if so, whether the ship was in deep water as opposed to an inland waterway? If the requested documentation does not exist or further efforts to obtain the documentation would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 4. Furnish the Appellant and her representative a statement of the case on the claim for accrued benefits based on the need for regular aid and attendance of another person or by reason of being housebound, including notice that the Appellant still must file a timely substantive appeal in order to perfect an appeal to the Board. 5. After the above development, adjudicate the claim of service connection for the cause of the Veteran's death. If the benefit sought is denied, furnish the Appellant and her representative a supplemental statement of the case and return the case 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). The 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). _________________________________________________ George E. Guido Jr. 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).