Citation Nr: 1342877	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  11-34 144	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

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


REPRESENTATION

Appellant represented by:	New Hampshire State Veterans Council


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from November 1952 to November 1954.  The Veteran died on July [redacted], 2010.  The appellant is his surviving spouse.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in October 2012.  A transcript of the hearing is associated with 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

Unfortunately, a remand is required in this case.

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her 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).

In this case, the appellant did not receive proper VCAA notice.  Indeed, it appears that the appellant did not receive any VCAA notice.  As such, a remand is necessary to ensure that proper VCAA notice can be issued.  This notice should comply with all three notice elements set forth in Hupp.

Accordingly, the case is REMANDED for the following action:

1.  The appellant and her representative must be sent a VCAA letter that complies with the Court's decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007).  The appellant should be given opportunity to respond.

2.  Thereafter, and after undertaking any additional development which is deems necessary, readjudicate the appellant's cause of death claim.  If the benefit sought on appeal remains denied, provide the appellant with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response.  Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order.

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. 2013).



_________________________________________________
Thomas H. O'Shay
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) (2013).