Citation Nr: 1308162 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-43 490 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty in the United States Army with unconfirmed service from September 1944 to December 1945. He died in October 1987. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the VA RO and Pension Management Center in St. Paul, Minnesota. In September 2011, the Board remanded the appeal for further development and due process reasons. Unfortunately, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. 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). REMAND The certificate of death indicates that the Veteran was born in June 1918 and died in October 1987 at the age of 69 as a result of cardiogenic shock that was due to (or a consequence of) ventricular tachycardia that was due to (or a consequence of) arteriosclerotic cardiovascular disease with old anterior myocardial infarction. The appellant argues that these conditions resulted from a psychiatric disorder that the Veteran developed as a result of his military service. See, e.g., June 2010 statement. In the September 2011 remand, the Board noted that the record on appeal contained a death certificate, application for burial benefits, and grant of burial benefits for a deceased veteran whose name was nearly identical to that of the Veteran in the present appeal. This other veteran was born in November 1913 and passed away in August 1987, and burial benefits were granted in November 1987, more than 20 years before the appellant in the present case filed her claim for benefits. The Board further noted that, due to an administrative error, it appeared that both deceased Veterans share the same VA claim number. However, both Veterans clearly have different social security numbers and different service numbers. Unfortunately, the Board finds that the appellant's claim of service connection for the cause of the Veteran's death must again be remanded as the claims folders still contain significant records pertaining to a veteran other than the appellant's husband (who had the same name as the appellant's husband), and previous development efforts were hampered by administrative errors, exacerbated by the fact that both Veterans are still referenced under the same VA claim number. For example, requests for the Veteran's service records from the National Personnel Records Center (NPRC) contained identifying information (service number, dates of service, date of birth, and date of death) for the other deceased veteran whose cause of death claim is not currently on appeal. The only accurate identifying information provided in these NPRC requests was the Veteran's social security number. As a result, the reconstructed record (from the Office of the Surgeon General (SGO)) provided by the NPRC and received at the AMC in November 2012 is a record pertaining to the veteran whose cause of death claim is not currently on appeal. The service number listed on the SGO record is that of the veteran whose cause of death claim is not currently on appeal. The September 2011 remand had requested removal of all documents pertaining to the other deceased veteran whose cause of death claim is not currently on appeal; however, a death certificate, application for burial benefits, and grant of burial benefits pertaining to the other deceased veteran whose cause of death claim is not currently on appeal remain in the record currently before the Board. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). In order to facilitate the work of the AMC/RO, the Board has separated the records for the two Veterans: the slimmer, lighter-colored volume of the claims folder now only contains the documents which pertain to the other deceased veteran and the thicker, darker-colored volume of the claims folder now only contains the documents which pertain to the current appeal. The Board further notes that the confusion in this case is not entirely due to administrative error on the part of VA. The appellant provided incorrect service dates and incorrect service numbers in her initial claim for benefits (the service dates and service numbers are actually that of the other deceased veteran whose cause of death claim is not currently on appeal). See VA Form 21-524 received in October 2009. Her former representative also provided an incorrect certification of service document. (The certification of service is actually that of the other deceased veteran whose cause of death claim is not currently on appeal). Also, communication in this case is hampered by the fact that the appellant is currently representing herself (pro se), and, by her own admission, she can't "Speak, Read, or Write or Understand a word in the English." See appellant's April 15, 2010 written statement. She did not marry the Veteran until 1977, many years after his period of service. So, she apparently does not have personal knowledge of the details of his service. See VA Form 21-524 received in October 2009. Regardless, these administrative matters should be resolved forthwith. Otherwise, VA would be in violation of the Privacy Act that VA is required by law to enforce. Although not completely clear, the VA claims number at the top of each page of this remand appears to be that of the other deceased veteran whose cause of death claim is not currently on appeal. Thus, the Veteran whose claim is currently on appeal should be assigned a new VA claim number-but only if he has not already been assigned a VA claims number and there is not already a VA claims folder with relevant evidence for the current Veteran already in the VA system. Also, the Board finds that the record remains incomplete. The file is missing relevant documents. An August 2010 rating action and an August 2010 statement of the case (SOC) reference a February 1, 1946 service treatment record that is not included in the claims files. As noted above, requests for service treatment records from the NPRC provided inaccurate identifying information, and therefore additional, corrected requests should be made. Moreover, while the AMC contacted the Chicago, Houston, San Antonio, and Waco ROs (as the record indicates that the current Veteran resided in Texas at the time of his death) in an attempt to locate his records, the only information provided to those offices was the Veteran's name and VA claims number. All responses were negative. The negative responses are not surprising given that, as discussed above, the Veterans' names and VA claims numbers are identical. Thus, requests for an outstanding claims folder should be made using the Veteran's social security number, date of birth and/or death, or any other information which would distinguish records pertaining to the current Veteran from those of the other deceased veteran whose cause of death claim is not currently on appeal. (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.) Accordingly, the case is REMANDED for the following action: 1. Contact the ROs in Houston, Texas; San Antonio, Texas; Waco, Texas; and Chicago, Illinois and/or any other appropriate repository of claims folders and attempt to obtain the current Veteran's permanent claims folder, if it exists. Requests for an outstanding claims folder should be made using the current Veteran's social security number, date of birth and/or death, or any other information which would distinguish records pertaining to the current Veteran from those of the other deceased veteran whose cause of death claim is not currently on appeal. Requests simply using the Veteran's name and the VA file number at the top of this page are inadequate, as discussed above. All efforts to obtain such records must be documented in the claims folder. 2. If the current Veteran's permanent claims folder is not located, or if his service treatment records and service personnel records are not located in the claims folder, contact the National Personnel Records Center (NPRC) and/or any other appropriate repository of records, and request copies of the current Veteran's service treatment records and service personnel records. Requests for service records should be made using the current Veteran's social security number, dates of birth and death, service number or any other information which would distinguish records pertaining to the current Veteran from those of the other deceased veteran whose cause of death claim is not currently on appeal. Requests using identifying information pertaining to the other deceased veteran whose cause of death claim is not currently on appeal are inadequate, as discussed above. All efforts to obtain such records should be noted in the claims file. 3. If and only if a claims folder and VA file number unique to the current Veteran have not been previously created, create a VA claims file for the current Veteran and assign a VA claim number to him. Separate the slimmer, light-colored volume of the current claims folder from the current Veteran's VA claims folder. Associate the thicker, darker-colored volume of the current claims folder with the new claims folder for the current Veteran. 4. After conducting any/all additional development deemed necessary for the proper adjudication of the current appellant's cause of death claim, readjudicate the issue of entitlement to service connection for the cause of the current Veteran's death. If the decision remains adverse to the appellant, she should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).