Citation Nr: 1414956 Decision Date: 04/04/14 Archive Date: 04/11/14 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 1. Whether there was clear and unmistakable error (CUE) in the August 1961, January 1984, or October 1999 rating decisions. 2. Whether new and material evidence has been received with respect to a claim of entitlement to Dependents and Indemnity Compensation (DIC) benefits. 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 [redacted], 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 decision. This case was last before the Board in July 2013, when it was remanded for further development. The case has been returned to the Board for further appellate review at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 In the previous remand, the Board requested that a Veterans Claims Assistance Act of 2000 (VCAA) letter be sent to the appellant that included: (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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The originating agency did not comply with this request. A remand is necessary to ensure compliance with its previous remand. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Board additionally requested that the appellant's claim for CUE be addressed. The RO/AMC issued a November 2013 rating decision purporting to address that claim; however, the Board finds that adjudication does not address any prior rating decision, but rather addresses the 2012 statement of the case. However, the essence of the CUE claim is that error in earlier final rating decisions precluded the appellant from receiving DIC under the provisions of 38 U.S.C.A. § 1318. In essence, the appellant advanced the following arguments: (1) The August 1961 Rating Decision: The appellant argues that increased evaluations for the Veteran's service-connected disabilities made the Veteran "eligible" for TDIU at that time. (2) The January 1984 Rating Decision: The appellant argues that the decision to deny TDIU at this time was erroneous because the RO impermissively "alleged, without medical basis, that the employment problems were attributable to a back condition that was causing the increased right leg disability. The appellant argues that the VA failed in its duty to assist the Veteran and as such the claim remained in an open/pending fashion until he re-filed and was granted TDIU benefits in April 1999. . . . [T]here is sufficient evidence in the record to support the conclusion that had the [RO] acted appropriately in 1984 the TDIU would have been in effect in excess of 10 years and death benefits under 38 U.S.C.A. § 1318 are for application." (3) The October 1999 Rating Decision: That the effective date assigned to the award of TDIU in that decision should have been prior to April 22, 1999. 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) (2013). 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 DIC benefits under 38 U.S.C.A. § 1318. Such notice should 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. 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. The RO/AMC should specifically address the noted August 1961, January 1984 and October 1999 rating decisions, and the appellant's contentions as to those decisions as noted in the above discussion. 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 DIC 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 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 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) (2013).