Citation Nr: 1302844 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 11-14 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to Dependents' Educational Assistance (DEA) benefits pursuant to Chapter 35 of Title 38, United States Code. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1971, including service in Vietnam from January 1971 to October 1971. He died in July 2003. The appellant in this case is the Veteran's daughter. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant testified at a travel board hearing in August 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 After a review of the claims file, the Board finds that additional development is needed prior to further disposition of the claim. For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2012). In this case, the Veteran died in July 2003. According to the July 2003 autopsy report, the cause of death was considered to be left retroperitoneal hemorrhage that was most likely caused by trauma. The hemorrhage may also have been exacerbated by alcohol-induced thrombocytopenia. Other than left perirenal retroperitoneal hemorrhage, the final pathologic diagnoses included cirrhosis and fatty metamorphosis of the liver, severe coronary artery arteriosclerosis, chronic cholecystitis with cholelithiasis, severe post mortem autolysis, history of recent dog bite in the left arm, history of chronic alcoholism, and post mortem toxicology studies showing an ethyl alcohol level of 0.12 grams/100 grams of tissue. The appellant contends that the Veteran's severe coronary artery arteriosclerosis, which was one of his final pathologic diagnoses, caused his death. She argues that the Veteran should have been service-connected for his coronary artery arteriosclerosis based on his exposure to Agent Orange in Vietnam. The Veteran's service personnel records confirm that he served in Vietnam from January 1971 to October 1971. Pursuant to the Agent Orange Act of 1991, ischemic heart disease (which includes coronary artery disease and arteriosclerotic heart disease) was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), effective as of August 31, 2010. See 75 Fed. Reg. 53202 (August 31, 2010). The appellant also reports that the Veteran had been diagnosed with posttraumatic stress disorder (PTSD). She alleges that the Veteran's PTSD had contributed to his alcoholism, which led to his death. However, she is uncertain whether the Veteran had been service-connected for PTSD at the time of his death. In support of her claim, the appellant has submitted some of the Veteran's service treatment and personnel records as well as his VA medical records dated from October 1996 to January 2003. However, it appears that the record is incomplete, as there is no information regarding whether the Veteran was service-connected for any disabilities at the time of his death. Because the information in the Veteran's claims file would be both relevant and helpful to the claim on appeal, a copy of the Veteran's claims file should be obtained and associated with the appellant's claims file. Additionally, although VA treatment records dating from October 1996 to January 2003 from the Palo Alto, California, VA Medical Center (VAMC) are of record, the appellant has indicated that the Veteran also received treatment at the Fresno, California, VAMC, including the Merced Community-based Outpatient Clinic. The Fresno VAMC treatment records may be relevant to the issue on appeal. Accordingly, these relevant medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate the Veteran's claims file with the appellant's claims file. The Veteran's claims file should include his service treatment records and any claims he may have filed during his lifetime. All attempts to secure these records must be documented in the claims file. 2. Obtain all of the Veteran's treatment records from the Fresno VAMC, to include any treatment records from the Merced Community-based Outpatient Clinic. If any requested records are unavailable, then the file should be annotated as such and the appellant should be so notified. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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) (2012).