Citation Nr: 1305504 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 04-40 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Survivors' and Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The appellant is the surviving spouse of the service member who had active military service from June 1946 to February 1950, and from July 1952 to January 1968; with additional service in the United States Marine Corp and the United States Navy Reserves. The service member passed away in May 2002. This matter initially came before the Board of Veterans' Appeals, hereinafter the Board, from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Jackson, Mississippi. After perfecting her appeal, the appellant testified at an RO hearing in March 2005 and at a Board video conference hearing before a Veterans Law Judge in August 2005; copies of these transcripts are associated with the claims file. It is noted that the Veterans Law Judge before whom the appellant testified has retired from her position at the Board. The appellant was notified that she could provide testimony before another Veterans Law Judge or proceed with the adjudication of her claim. The appellant subsequently declined the option for another hearing. In February 2006, the Board denied the appellant's claims seeking entitlement to service connection for the cause of the Veteran's death and DEA benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Following the review of a "Joint Motion to Vacate and Remand" (Joint Motion), in October 2007, the Court vacated and remanded the Board's February 2006 decision. After the claim was returned to the Board, the Board has concluded that additional development of the appellant's claim was necessary prior to further adjudication on the merits of her claims. Hence, in November 2007 and September 2012, the claims were remanded to the RO for additional development. The claims have since been returned to the Board for review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The record is not in compliance with the instructions from the September 2012 Board Remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Court or Board is not complied with, the Board itself errs in failing to insure compliance. Id. In the September 2012 Remand, the Board instructed the RO to conduct development in compliance with the provisions of VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n and readjudicate the issues on appeal. In December 2012, the appellant's representative asserted that the evidence sought on development was already of record and requested that her right to additional development be waived. In light of this statement, the RO did not take any action and returned the case to the Board. Review of the record, specifically the June 2012 representative's statement and associated documents, does not reflect evidence necessary to substantiate the appellant's contention that the Veteran had in-service herbicide exposure. The development requested in the September 2012 Remand is necessary to ensure that VA has fulfilled its duty to assist and afford due process to the appellant by the RO's consideration of the newly generated evidence in the first instance. The appeal is again remanded to ensure compliance with the September 2012 Remand instruction as detailed below. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO then must comply with the provisions of VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n and attempt to verify the Veteran's claimed herbicide exposure as follows: a) Furnish a detailed description of the Veteran's claimed exposure, while stationed in the Royal Thai Air Force Base at Korat, Thailand, to the Compensation and Pension Service via electronic mail at VAVBAWAS/CO/211/AGENTORANGE and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used at the base in question as alleged by the appellant and her accredited representative. b) If a negative response is received from the Compensation and Pension Service, the RO should submit a request to JSRRC for verification of exposure to herbicides. If no records are available from the JSRRC, a response to that effect is required and should be documented in the file. A Formal Finding should be issued by the JSRRC coordinator. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block o. All development undertaken in this regard should be documented for the record. 2. Thereafter, the RO should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the appellant, along with her accredited representative, should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 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). _________________________________________________ THOMAS J. DANNAHER 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).