Citation Nr: 0813228 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-30 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The appellant and the veteran's brother ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from February 1965 to February 1967. He died in January 2006. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which in part, denied entitlement to service connection for the cause of the veteran's death. In June 2007, the appellant testified at a videoconference hearing at the RO before the undersigned. A transcript of the hearing is of record. The Board notes that in a March 2006 letter, the appellant appeared to make a claim for burial benefits. This issue has not been adjudicated and is referred to the RO for such adjudication. 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 A preliminary review of the veteran's claims file indicates that his service medical records have not been associated with the claims file, notwithstanding that an August 2005 rating decision (addressing a different issue) contains a reference to such records. Under such circumstances, VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule of 38 U.S.C.A. § 5107(b) (West 2002). Given the absence of the veteran's service medical records at the present time and the lack of an explanation for this absence to date, additional efforts are required to obtain the service medical records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); 38 C.F.R. § 3.159(c)(2). . Moreover, the veteran's cause of death in this case was kidney failure, due to colon cancer. He was simultaneously treated at the time of death for his service-connected type II diabetes mellitus, and the Board cannot exclude the possibility of relevant evidence in the service medical records that are being requested in this issuance. As such, the Board finds that a medical opinion based upon a review of the veteran's claims file by an appropriate medical professional, following the completion of all other requested development, would be helpful. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. All necessary efforts to obtain the veteran's service medical records must be made. These should include, but are not limited to, contacting the service department for such records and requesting any available copies of his service medical records from the appellant. All records and documentation obtained pursuant to this request must be included in the veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file, with a full explanation. 2. Then, the veteran's claims file should be made available to an appropriate medical professional. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater likelihood) that the cause of the veteran's death, namely kidney failure due to colon cancer, was: (1) causally related to his active duty service; or (2) caused or hastened by one or more of his service connected disabilities (as listed in the appealed April 2006 rating decision, these include coronary artery disease associated with diabetes mellitus with diabetic retinopathy; diabetes mellitus with diabetic retinopathy; peripheral neuropathy, right upper extremity associated with diabetes mellitus with diabetic retinopathy; peripheral neuropathy, left upper extremity associated with diabetes mellitus with diabetic retinopathy; peripheral neuropathy, right lower extremity associated with diabetes mellitus with diabetic retinopathy; peripheral neuropathy, left lower extremity associated with diabetes mellitus with diabetic retinopathy; and erectile dysfunction associated with diabetes mellitus with diabetic neuropathy). A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. After completion of the above development, the claim of service connection for the cause of the veteran's death should be readjudicated. If the determination remains adverse to the appellant, she and her representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2006). _________________________________________________ A. C. MACKENZIE Acting 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).