Citation Nr: 0809661 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 99-07 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: James B. Konieczny, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The evidence on file indicates that the veteran served on active duty for a total of over 24 years. Service in Vietnam is indicated by the evidence of record. The veteran retired in March 1980. He died in July 1998. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 1999 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Procedural history In the January 1999 rating decision, service connection was denied for service connection for the cause of the veteran's death. The appellant perfected an appeal of that denial. In May 1999 and August 2000, the appellant presented oral testimony at hearings held at the RO before a Hearing Officer and the undersigned Veterans Law Judge, respectively. Transcripts of these hearings have been associated with the veteran's claims file. In June 2001, the Board denied the appellant's claim. In June 2002, the United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision and remanded this case to the Board, based on a June 2002 Joint Motion For Remand. In essence, the Joint Motion concluded that all of the pertinent of evidence of record had not been obtained because an attempt had not been made to obtain all of the veteran's treatment records from Womack Army Community Hospital (ACH) covering the period from 1980 to 1993. In September 2003 and April 2007, the Board remanded this claim to the RO for further development. In November 2007, a supplemental statement of the case (SSOC) was issued by the RO which continued the previous denial of the claim. The case is once again before the Board. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action on her part is required. Issue not on appeal In a June 2006 decision, the Committee on Waivers and Compromises of the Debt Management Center at the VA RO in Philadelphia, Pennsylvania denied a waiver of overpayment of death pension benefits in the amount of $12,805.00. The appellant filed a timely Notice of Disagreement (NOD) as to that denial. In a December 2006 decision, the Committee granted a full waiver of the 12,805.00 debt. Therefore, the benefit sought on appeal was granted, and the matter is not in appellate status. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must again be remanded for further evidentiary development. In its September 2003 and April 2007 remands, the Board directed the RO to obtain all of the veteran's treatment records from Womack ACH for the period from 1980 to 1993. Although the RO obtained all inpatient hospitalization records from Womack ACH for that time period, National Personnel Records Center (NPRC) responses in November 2004, February 2005, and again in August 2007 reflect that the RO limited its request to inpatient hospitalization records. The RO failed to comply with the directives of the Board's September 2003 and April 2007 remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Outpatient treatment records from Womack ACH must be obtained. Accordingly, this case is REMANDED for the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should attempt to obtain all outpatient treatment records from Womack ACH regarding treatment of the veteran as a military retiree from 1980 to 1993. Because the NPRC will only process a request for a one-year period of records at a time, VBA should make separate requests for records for each applicable individual year from 1980 to 1993. If additional information from the appellant is needed to facilitate a search for such records, VBA should request such information from the appellant through her counsel. All efforts to obtain such records should be documented in the claims folder. Any such records so obtained should be associated with the claims folder. If no records are found, VBA should inform the appellant and her counsel of its efforts to obtain such records. 2. If it is deemed necessary by the evidence then of record, and after undertaking any additional development it deems necessary, VBA should readjudicate the appellant's claim. If the decision remains unfavorable to the appellant, a supplemental statement of the case (SSOC) should be prepared. The appellant and her counsel should be provided with the SSOC and an appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Barry F. Bohan 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) (2007).