Citation Nr: 1306308 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-27 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a). (The issues of entitlement to service connection for the cause of the Veteran's death and entitlement to enhanced death pension benefits due to the need for aid and attendance and/or housebound status as a surviving spouse are addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1950 to January 1954. He died in February 2008 and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. 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 Appellant filed a claim for eligibility for RH insurance benefits in February 2008. The claim was denied in a September 2008 rating decision. The Appellant filed a notice of disagreement in March 2009 and the RO assumed jurisdiction of the matter, issuing a statement of the case in June 2009. The Appellant file a VA Form 9 in July 2009, thus perfecting her appeal to the Board. In an August 2012 Report of Contact, an employee of the RO contacted an employee at the VA Insurance Center. The Insurance Center employee informed the RO that the RO did not have jurisdiction over the matter. The Insurance Center employee also stated that the Appellant did not submit a timely notice of disagreement with the September 2008 rating decision, as her notice of disagreement was received on November 3, 2009. The Appellant and her representative were informed of this in a November 25, 2009 letter. In reviewing the Appellant's claim the Board observes that certain pieces of evidence have not been associated with the claims file. Specifically, an October 8, 2008 notification letter sent to the Appellant with the September 2008 rating decision, the November 3, 2009 notice of disagreement, and the November 25, 2009 notice letter stating that the Appellant's notice of disagreement was untimely. The Board is also uncertain as to whether the Appellant disagreed with the finding that her notice of disagreement was untimely or if there is other outstanding evidence pertaining to this claim not associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Since the Board has identified outstanding VA records pertinent to the Appellant's current claim on appeal, the RO should associate all evidence not currently in the claims file, including, but not limited to, the evidence referenced above; a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). 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. Associate outstanding evidence pertinent to this claim with the claims file so that the Board may review it. This includes, but is not limited to, the October 8, 2008 notification letter, the November 3, 2009 notice of disagreement, and the November 25, 2009 notice letter stating that the Appellant's notice of disagreement was untimely. 2. After completing the above, and any other development deemed necessary, the Philadelphia ROIC should readjudicate the issue of eligibility for RH insurance under 38 U.S.C. § 1922(a) on the merits. If the benefits sought are not granted, the Appellant and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2012). _________________________________________________ Vito A. Clementi 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).