Citation Nr: 1123789	
Decision Date: 06/22/11    Archive Date: 06/28/11

DOCKET NO.  06-01 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) benefits for the cause of the Veteran's death, pursuant to the provisions of 38 U.S.C.A. § 1151.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Coyle, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1956 to September 1957.  He died in November 2004.  The appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151.  A timely appeal was noted from that decision.

In January 2010, the Board remanded this issue to the RO (via the Appeals Management Center (AMC)) for further evidentiary development.  The case is now back before the Board for further appellate 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

Review of the record reveals that there has not been proper compliance with the Board's January 2010 remand, which requested that the RO obtain the complete hospital records from the Veteran's August 2004 VA hospitalization, including any surgical reports, nurse's notes and other applicable records.  There is no evidence in the file that the RO attempted to gather these records.  

It has been held that compliance by the RO is neither optional nor discretionary.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to assure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Thus, a remand is required to ensure that the orders of the Board's January 2010 remand are carried out.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the complete hospital records from the Veteran's August 2004 hospitalization at the VA Medical Center in Biloxi, Mississippi, including any surgical reports, nurse's notes, informed consent, and any other applicable records.  If such records are unavailable, a negative response must be obtained and the appellant should be so notified.

2.  After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication.  If the issue on appeal continues to be denied, the appellant and her representative must be provided a supplemental statement of the case.  The appellant must then be given an appropriate opportunity to respond.  Thereafter, the case must be returned to the Board for appellate review.

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. 2010).




_________________________________________________
Michael J. Skaltsounis
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).