Citation Nr: 1003363 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-03 331A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to insurance benefits under 38 U.S.C.A. § 1922. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1983. He died in March 2005. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2008, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. In conjunction with that hearing, the appellant submitted a substantial amount of evidence, including documentation of having been appointed a guardian ad litem for the Veteran in a worker's compensation case as well as medical treatment records documenting the Veteran's mental state a few years after the accident. The appellant submitted a written document waiving her right to have initial consideration of the evidence by the agency of original jurisdiction (AOJ) and the Board has considered that evidence. 38 C.F.R. § 20.1304(c) (when additional evidence is accepted by the Board, it must be referred to the agency of original jurisdiction (AOJ) for initial review unless the appellant or his or her representative waives that procedural right). But the appellant also submitted additional evidence to the Board in January 2009, without waiving her procedural right to have the AOJ initially consider that evidence. As discussed below, the appeal is being remanded to the RO and Insurance Center for further development. As a result, the AOJ can initially consider that additional evidence. The appeal is REMANDED to the RO and Insurance Center via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant testified that the Veteran was receiving disability benefits from the Social Security Administration (SSA) from 1990 until the time of his death. Those records could contain information that would be relevant to whether the Veteran was incompetent as a result of his June 1990 fall and whether that incident was related to his service- connected diabetes disability. It is possible that the SSA records contain some of the treatment records that VA could not obtain in this case. But neither the claims folder nor the insurance file shows that SSA was contacted and asked to supply the SSA disability records. When records are maintained by a federal record keeper, VA is required to make as many requests as are necessary to obtain the relevant records. 38 C.F.R. § 159(c)(2). A remand is necessary for the purpose of obtaining those SSA records and associating them with the Veteran's insurance file. In addition, the February 2006 letter from Dr. Egner indicates that prior to becoming his patient in 1993, the Veteran had received treatment at the VA Iliana Health Care System in Danville, Illinois. Although VA has a duty to assist a claimant in obtaining evidence to substantiate his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007)), nothing in the claims folder indicates that the RO requested those VA treatment records. VA medical treatment records are deemed to be within the control of VA and should have been included in the record, as they may be determinative of the claim. Therefore a remand is necessary for the purpose of obtaining such records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The appellant indicated that as a Veteran who had retired after 20 years of service, the Veteran received some medical care after service through CHAMPUS (which care is now provided through TRICARE). October 2008 Statement by the Appellant. The February 2006 letter from Dr. Egner indicated that before becoming his patient, the Veteran had received treatment at Chanute Air Force Base. As these records may also contain relevant information as to the Veteran's diabetes mellitus and his capacity, the RO should make arrangements to obtain those records and associate them with the Veteran's insurance file. There is also evidence in the record that the Veteran was receiving mental health care from a psychiatrist in August 1996, but there is nothing to indicate that those records were sought. The RO should contact the appellant to find out the name and location of that psychiatrist and make arrangements to obtain those records and associate them with the insurance file. The appellant claims that annual forms filed with MetLife Insurance would reflect a doctor's yearly determination that the Veteran was incompetent. She tried to obtain those records but the insurance company would not release them to her. It is possible that they may release those records to VA. The RO should make arrangements to obtain a release from the executor of the Veteran's estate, request the records from MetLife, and associate any records received with the insurance file. The appellant's theory is that the Veteran's June 1990 accident was the result of his high blood sugar on that day. If more complete treatment records from the June 1990 accident, or any other additional evidence obtained since the January 2008 statement of the case, show that the Veteran's blood sugar was extremely high on the accident date and that he became incompetent thereafter, then the RO should make arrangements to obtain a medical opinion on the issue whether the Veteran was incompetent as a result of his service- connected diabetes mellitus disability. Finally, the December 2005 rating decision addressed only whether the appellant was eligible for Gratuitous Insurance (ARH) under 38 U.S.C.A. § 1922(b). But the appellant appears to be asserting in the alternative that she is seeking Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) because her husband was never notified that he was eligible to file for it. Accordingly, in readjudicating the appeal and although addressed in an April 2006 letter, both RH and ARH insurance should be addressed in any supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's disability claim records from the Social Security Administration and associate them with the life insurance file. 2. Make arrangements to obtain all of the Veteran's VA treatment records from separation from service until his death (including those at the VA Iliana Health Care System in Danville, Illinois) and associate those records with the insurance file. 3. Make arrangements to obtain from the executor of the Veteran's estate an authorization to obtain records from MetLife concerning the annual certification that the Veteran was incompetent, obtain those records, and associate them with the life insurance file. 4. Make arrangements to obtain the Veteran's CHAMPUS treatment records, including those at Chanute Air Force Base, and associate them with the life insurance file. 5. Ask the appellant to identify the psychiatrist who treated the Veteran and provide an authorization form for those treatment records, obtain those records, and associate them with the life insurance file. 6. If, after the above development is completed, the evidence indicates that the Veteran's blood sugar was extremely high on the date of the June 1990 accident and that he thereafter became incompetent, make arrangements to obtain a medical opinion as to whether the Veteran was incompetent due to his service-connected diabetes mellitus disability. 7. Thereafter, readjudicate the claim. Address the appellant's eligibility for both Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) and Gratuitous Insurance (ARH) under 38 U.S.C.A. § 1922(b). If any sought benefit is denied, issue the appellant and her representative, if any, a supplemental statement of the case. After they have been given an opportunity to respond, the claims file and the insurance file should be returned to this Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ S. L. Kennedy 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) (2009).