Citation Nr: 1122048	
Decision Date: 06/07/11    Archive Date: 06/20/11

DOCKET NO.  06-07 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for cause of the Veteran's death, to include as secondary to Agent Orange exposure.


WITNESSES AT HEARING ON APPEAL

Appellant and son


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from February to August 1961, and again from January 1965 to August 1985, to include service in the Republic of Vietnam.  His decorations include the Combat Infantryman Badge.  In addition, the Veteran served with the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied service connection for cause of the Veteran's death.  The appellant is the Veteran's surviving spouse.

In August 2007 and October 2009, this matter was remanded for additional development and 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

As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to this appeal.  Information concerning the VCAA was provided to the appellant by correspondence dated in February 2005, March 2006, and April, May and June 2009.

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.  38 C.F.R. § 3.312(a) (2010).  The Veteran's Certificate of Death indicates an autopsy was performed; however, the autopsy report is not within the claims file.  As such, the RO should attempt to obtain the autopsy report and associate it with the claims file. 

The Board regrets that further development, with ensuing delay, is necessary for the proper adjudication of the claim.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should contact the appellant and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his service-connected PTSD as well as disabilities listed on his death certificate.  Of particular interest, is the autopsy report related to the Veteran's death in January 2005 that was referenced in the Certificate of Death.  After the appellant has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the appellant, a notation to that effect should be inserted in the file.  The appellant is to be notified of unsuccessful efforts in this regard, in order to allow her an opportunity to obtain and submit those records for VA review.

2.  After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations.  If any benefit sought on appeal remains denied, the appellant should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for 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. 2010).



_________________________________________________
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) (2010).