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).