Citation Nr: 0811266 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-27 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and an observer ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran had active service from January 1943 to July 1945, and died in February 1994. The appellant is the veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2005, the appellant testified at a personal hearing before the Board. A transcript of that hearing has been associated with the claims files. In a February 2007 Order, the Court of Appeals for Veterans Claims (Court) granted a February 2007 joint motion for remand of this matter, thereby vacating a February 2006 Board decision and remanding the matter to the Board for further action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In correspondence dated in February 2008, the appellant's attorney requested that additional VA records of treatment, including those of treatment at the Hines VA Hospital, and at another VA facility, for the period from 1981 through 1986, be obtained and associated with the claims files. The appellant's attorney contended that these records may be relevant to the claim on appeal. Accordingly, they may be useful in adjudicating the matter on appeal. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Additionally, in the February 2007 joint motion for remand of this case, it was agreed that the case must be re-adjudicated to include consideration of a revised version of 38 C.F.R. § 3.22, and in particular revised section (b)(1) of 38 C.F.R. § 3.22. See 70 Fed. Reg. 72211, 72221 (Dec. 2, 2005), codified at 38 C.F.R. § 3.22(b)(1) (2007). The RO should include consideration of this provision as amended in its readjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Request the appellant and her representative to identify the name and address of records providers of medical treatment, not previously obtained and associated with the claims file, which are contended to be relevant or potentially relevant to the issue of entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. After any required releases for medical information are requested and obtained from the appellant, an attempt should be made to obtain any records so identified that have not been previously obtained. The records sought should include records of VA treatment of the veteran, not currently associated with the claims files, at the Hines VA Medical Center from 1980 through 1986, as well as records of treatment from a VA facility in Indianapolis during this time frame, as described in the January 2005 Board hearing transcript at pages 4-6 and more generally in a letter from the appellant's attorney dated in February 2008. 2. Readjudicate the issue on appeal, to include consideration of 38 C.F.R. § 3.22 (2007), and more specifically, to include consideration of 38 C.F.R. § 3.22(b)(1) (2007). If the benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2007). _________________________________________________ U. R. POWELL 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).