Citation Nr: 0601142 Decision Date: 01/13/06 Archive Date: 01/19/06 DOCKET NO. 03-05 489A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance (NSLI) policy. WITNESSES AT HEARING ON APPEAL Appellant and E.B. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from December 1942 to December 1945. He died in November 2001. The appellant is the veteran's niece. This matter is contested, and comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 determination by the RO&IC in Philadelphia. The appellant filed a notice of disagreement (NOD) in September 2002, and the RO&IC issued a statement of the case (SOC) in January 2003. The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2003. In August 2004, the appellant and E.B. testified during a hearing before the undersigned Veterans Law Judge at the RO in Chicago, Illinois; a transcript of that hearing is of record. During the hearing, the appellant submitted additional evidence directly to the Board. The evidence included a copy of the veteran's will, a statement from William J. Brownfield regarding the veteran's competency, and VA outpatient treatment records dated in April 1994, May 1994, and November 1994. The appellant waived initial RO consideration of this evidence. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.800 (2004). In February 2005, the Board remanded the appellant's claim to the RO for additional development. Following completion of that development, the RO continued the denial of the claim (as reflected in a July 2005 supplemental SOC (SSOC)), and returned this matter to the Board. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on her part, is required. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action on the claim on appeal is warranted even though such action will, regrettably, further delay an appellate decision on the claim. The Board notes that in an August 1991 Designation of Beneficiary (VA Form 29-336), the veteran listed the appellant as the principal beneficiary to his NSLI policy. Thereafter, in January 1994, the veteran executed a new designation of beneficiary in which he named L.I. as the principal beneficiary. The veteran subsequently executed an additional designation of beneficiary in May 1994, in which he named A.W. as the principal beneficiary of his NSLI policy. The appellant has contended that the veteran was incompetent at the time he executed the designation of beneficiary in January 1994 and May 1994. As such, she is the rightful principal beneficiary to the veteran's NSLI policy. In the February 2005 remand, the Board requested that the RO issue the appellant a notice letter to specifically inform her of the Veterans Claims Assistance Act (VCAA), and the notice and duty to assist provisions, to particularly include the duty, imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), requiring VA to explain what evidence will be obtained by whom. See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As noted previously, action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). In May 2005, the RO issued the appellant a letter, which notified her of the evidence needed to substantiate her claim as well as the evidence that VA would obtain and what evidence she would be responsible for obtaining. In particular, the letter noted that VA would attempt to obtain any VA medical records identified by the appellant. Furthermore, the letter noted, You are solely responsible for providing any and all other evidence to substantiate your claim, other than the evidence that we have stated we will provide. Such evidence includes both medical and lay evidence. You are responsible for providing records from physicians and hospitals other that [sic] VA physicians or hospitals, or any other information that might have bearing on [the veteran's] mental status . . . . . In the Board's view, the aforementioned notice letter does not comply with the February 2005 remand request. Here, the information provided by the RO to the appellant with respect to the duty to assist is incorrect and misleading. Contrary to the information provided in the May 2005 letter, the Board notes that VA is responsible for making reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Likewise, VA duties include obtaining records from other Federal departments and/or agencies. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(c)(1), (2) (2004). In short, the record still does not include proper notice to the appellant of the duty, imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), requiring VA to explain what evidence will be obtained by whom. The Board points out that a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Since the directives of the February 2005 remand were not completely followed, a remand for compliance with the VCAA notice requirements is again warranted. The RO's notice letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103; but see also Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (codified at 38 U.S.C.A. § 5103(b)(3)) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO's notice letter should also request that the appellant submit all medical evidence pertinent to her claim on appeal that is in her possession. If the appellant responds, the RO should attempt to obtain any pertinent outstanding evidence for which the appellant provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. For the sake of efficiency, the RO's adjudication of the claim should include consideration of evidence submitted during the August 2004 Board hearing. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should furnish to the appellant a letter providing notification of the VCAA and the duties to notify and assist imposed thereby. The letter should include a summary of the evidence currently of record that is pertinent to the claim and specific notice as to the type of evidence necessary to substantiate the claim. To ensure that the duty to notify the claimant what evidence will be obtained by whom is met, the RO's letter should include a request that she provide sufficient information and, if necessary, authorization to enable VA to obtain any identified medical records. The RO should also invite the appellant to submit all evidence pertinent to the claim that is in her possession, and explain the type of evidence that is her ultimate responsibility to submit. The RO's letter must also clearly explain to the appellant that she has a full one- year period for response (although VA may decide the claim within the one-year period). 2. If the appellant responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 268. 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO&IC should readjudicate the claim for entitlement to the proceeds of the veteran's NSLI policy in light of all pertinent evidence and legal authority. 5. If the claim on appeal remains denied, the RO should furnish to the appellant an appropriate SSOC that includes citation to all additional legal authority considered-to specifically include the current provisions of 38 C.F.R. §§ 3.102 and 3.159-as well as clear reasons and bases for its determination, and afford the appellant the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ JACQQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2004).