BVA9503620 
DOCKET NO.  93-09 138     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

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

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

G. Wm. Thompson, Counsel

INTRODUCTION

The veteran received disability retirement in August 1959, after
completing more than 17 years of active military service.  He
died in November 1991.  At the time of death service connection
was in effect for thromboangiitis obliterans, bilateral, lower
extremities, with lumbar sympathectomy, evaluated at 70 percent
(protected), and thromboangiitis obliterans, bilateral, upper
extremities, evaluated at 20 percent (protected).  The combined
rating was 80 percent.

This appeal arises from a January 1992 Department of Veterans
Affairs (VA) Houston, Texas, Regional Office (RO) rating action
denying the appellant's claim for entitlement to service
connection for cause of the veteran's death (dependency and
indemnity compensation benefits).

The RO, in early January 1993 provided written notice to the
appellant that she had 60 days to submit additional evidence,
before her claim was placed on the docket of the Board of
Veterans' Appeals (Board).  In late January 1993 the RO received
additional material the appellant felt germane to her claim.
This material was not considered by the RO; however, it was
forwarded to the Board with the claim when it was certified to
the Board in April 1993.  In April 1994 the RO forwarded to the
Board records the appellant had sent to her Congressman, and the
Congressman had forwarded to the RO.  These records were a
duplicate of material submitted in April 1993.  There is no
evidence that the records, originally received by the RO, were
accompanied by waiver of the procedural right to have the
evidence considered by the RO.

REMAND

The appellant's claim for dependency and indemnity compensation
(DIC) benefits was received in January 1992, within one year of
the veteran's death, and pursuant to 38 U.S.C.A. § 5101(b)
includes a claim for accrued benefits.  Satchel v. Derwinski, 1
Vet.App. 258 (1991).  However, to be eligible for accrued
benefits, the claimant must show that the veteran was entitled to
benefits under existing ratings or decisions or on basis of
evidence in veteran's claims file at date of death.

The RO did not address accrued benefits in its determination,
even though the appellant's DIC claim is to be considered to
include an accrued-benefits claim, if supported by the facts of
the case.  The veteran's claims folder did not contain evidence
at death sufficient to adjudicate any accrued-benefits claim
included in the appellant's DIC application.  Therefore, the VA
must notify her of the evidence requirements necessary to
complete the application.  Lathan v. Brown, No. 93-62 slip op. at
15, 16 (U.S. Vet. App. Jan. 26, 1995).

Therefore this case is remanded for action as follows:

1.  The RO will review the additional
evidence submitted by the appellant in
January 1993.

2.  The RO shall contact the appellant and
notify her of the evidence necessary to
complete an application for accrued
benefits.  If a claim for accrued benefits
is pursued by the appellant, she should be
permitted to submit or identify any other
evidence in support of her claim.  Pertinent
evidence identified should be obtained by
the RO.  If a claim for accrued benefits is
denied, and the appellant submits a notice
of disagreement, the RO should develop such
an issue for appeal.

Following completion of the foregoing, if any benefit sought
remains denied, the appellant  and her representative should be
provided with a supplement statement of the case and be given
opportunity to respond.  The case should then be returned to the
Board for further appellate consideration.

RENÉE M. PELLETIER
Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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) (1994).