Citation Nr: 1802849	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-10 500	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to special monthly compensation based on anatomical loss of the right breast.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ben Winburn, Associate Counsel






INTRODUCTION

The Veteran had active military service from May 1976 to November 1979 and from March 1980 to March 1990, and active service in the Army Reserves from June 1994 to January 1998.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran testified at a hearing before a Veterans Law Judge in October 2013.  A transcript of that hearing is of record.  The Veterans Law Judge who presided over that hearing is no longer with the Board.  In an October 2017 letter, the Veteran was notified of that fact and informed of her right to have a new hearing before a current member of the Board.  The Veteran has not expressed a desire to have a new hearing.

This case was previously before the Board, most recently in September 2016, at which time the issue on appeal was remanded for additional development.  The case has now been returned to the Board for further appellate action.

The issue of entitlement to service connection for residuals of breast cancer has been raised by the record in a December 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 


REMAND

The Board regrets the additional delay; however, additional development is required before the claim on appeal is decided.  

In December 2011, the Veteran expressed her desire to file a claim for special monthly compensation under 38 U.S.C. 1114(k) for right breast mastectomy.  However, the Veteran is not service-connected for breast cancer, to include any residuals of such.  Further, a claim for such has not been adjudicated by the AOJ.

Entitlement to special monthly compensation arises when service-connected impairment imposes a special level of disability.  Special monthly compensation is an additional payment of compensation above and beyond that which the Veteran receives as compensation for her service-connected disability.  Therefore, entitlement to special monthly compensation is wholly dependent on service connection for the underlying disability, and adjudication of the service connection claim must be completed before the issue currently on appeal is adjudicated.

The Board notes the Veteran's initial claim for special monthly compensation should have been construed as a claim of entitlement to service connection for residuals of breast cancer.  Therefore, the Veteran is considered to have had a pending claim of entitlement to service connection for residuals of breast cancer since December 2011.  

Accordingly, the case is REMANDED for the following action:


1.  Conduct the appropriate development and adjudicate the claim of entitlement to service connection for residuals of breast cancer in a rating decision and advise the Veteran of her rights and responsibilities for appealing any adverse decision of such.

2.  Conduct any other development determined to be warranted.

3.  Then, readjudicate the claim on appeal.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

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. §§ 5109B, 7112 (2012).




_________________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).