Citation Nr: 1308689 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-30 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for prostate cancer for accrued benefit purposes only. 3. Entitlement to service connection for throat cancer for accrued benefit purposes only. 4. Entitlement to service connection for pancreatic cancer for accrued benefit purposes only. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1974. He died in April 2007. The appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision. In January 2011, the appellant appeared and testified before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims folder. By decision dated in April 2011, the Board remanded the appellant's case for further development, including requesting outstanding VA and private treatment records and requesting service records reflecting the Veteran's service in Thailand and Vietnam. By decision dated in April 2012, the Board denied entitlement to service connection for the cause of the Veteran's death and denied service connection for prostate, throat, and pancreatic cancer, for accrued benefit purposes only. The appellant timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a Joint Motion for Remand. The parties to the Joint Motion for Remand requested that the Court vacate the Board's April 2012 decision. The Joint Motion for Remand specifically stated that the RO failed to comply with the Board's April 2011 Remand instructions by not requesting any available records pertaining to the Veteran's travel status to and from Thailand in July 1966 and July 1967, to include any potential Travel Voucher Forms (DD Form 1351-2), nearly 50 years ago, notwithstanding the fact that there is no indication that such records are available. The Veteran's claims folder has been returned to the Board for further appellate review. The Board is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis in this decision has been undertaken after such critical reevaluation of all the evidence as it pertains to the issue of service connection for a pulmonary disorder. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The appellant contends that the Veteran told her that while he was being transported to Thailand, his plane had a layover at Tan Son Nhut Air Base in South Vietnam. In April 2011, the Board remanded the case for further development, including requesting any available records pertaining to the Veteran's travel status to and from Thailand in July 1966 and July 1967, to include any potential Travel Voucher Forms (DD Form 1351-2). However, in the April 2012 Board decision that is now vacated, the Board specifically found that "no such travel orders were obtained." The Joint Motion for Remand specifically stated that the RO failed to comply with the Board's April 2011 Remand instructions by not requesting any available records pertaining to the Veteran's travel status to and from Thailand in July 1966 and July 1967, to include any potential Travel Voucher Forms (DD Form 1351-2), notwithstanding the above, or the facts cited in the Board's decision. The Board finds that this appeal must be remanded to request any available records pertaining to the Veteran's travel status to and from Thailand in July 1966 and July 1967, to include any potential Travel Voucher Forms (DD Form 1351-2). A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). 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) (2012). Expedited handling is requested.) 1. Conduct appropriate development to ascertain whether there are any available records pertaining to the Veteran's travel status to and from Thailand in July 1966 and July 1967, respectively, to include any potential Travel Voucher Forms (DD Form 1351-2). All attempts to secure those records should be documented in the claims file. The RO should notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if those records are unavailable. 2. After completion of the foregoing and all other necessary development, the RO should re-adjudicate the issues of service connection for the cause of the Veteran's death and service connection for prostate, throat, and pancreatic cancer, for accrued benefit purposes only. If the benefits sought remain denied, the appellant and her representative should be furnished a Supplemental Statement of the Case (SSOC), and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ JOHN J. CROWLEY 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) (2012).