Citation Nr: 1314822 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-39 045 ) 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 service connection for a psychiatric disorder for accrued benefits purposes. 3. Entitlement to service connection for migraines for accrued benefits purposes. 4. Entitlement to a neurological disorder for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to September 1983 and from August 1990 to December 1990. The Veteran died in May 2008. The appellant is the Veteran's surviving spouse. The appellant testified before the undersigned at a video conference hearing which was conducted in May 2012. 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 on her part. REMAND In May 2012, the appellant testified before the undersigned that the Veteran received treatment for anxiety from VA shortly after his return from the Persian Gulf. She also testified that he began to experience multiple unexplained symptoms just after his return from the Persian Gulf in 1990 and he sought treatment from VA and private physicians for the symptoms. The VA treatment was rendered in Birmingham, Alabama. A review of the claims file demonstrates that VA medical records had been requested from the medical center in Birmingham, but only for dates in 1995. No records from the VA medical facility located in Birmingham, Alabama have been associated with the claims file which are dated prior to 1995. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). Hence, the RO should obtain from the VA medical center located in Birmingham, Alabama all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since 1990, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The appellant also testified before the undersigned that the Veteran had been receiving treatment for cardiac problems including arrhythmia prior to his death. She reported that the records had not been submitted for this treatment as she had just remembered it. She did not remember the cardiologists name but knew he worked at "Colanades" and reported that she could obtain it. The record was to be held open for 60 days to allow the appellant to provide the name of the physician and to obtain the treatment records. To date, the appellant has not provided the name of the physician nor has VA performed any follow-up to determine if the requested information could be provided in order to attempt to obtain these treatment records. At the hearing, the appellant testified that the Veteran had been treated by health care providers named Hillmand, Myers, Peoples, McMurray, McCloud, Grossfield and Myers. Some records from some of these health care professionals have been obtained but it not apparent to the Board if all the outstanding records identified by the appellant at the time of the May 2012 video conference hearing have been associated with the claims file. No attempts by VA has been made to follow-up on these reports of possibly missing evidence pertinent to the claims on appeal. As the issue on appeal is being remanded to obtain the outstanding VA medical records, the Board finds attempts must be made to obtain all the pertinent records from the health care providers and medical facilities identified by the appellant at the time of the May 2012 video conference hearing. Further, to ensure that all due process requirements are met, while these matters are on remand, the RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claims on appeal. The notice letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA-prior to adjudicating the claims on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain, to the extent possible, all the Veteran's medical records from the VA medical facility located in Birmingham, Alabama. The Board is particularly interested in obtaining all those records dated prior to 1995. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the appellant and her representative a letter requesting that the appellant provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to claim on appeal that is not currently of record. The Board is particularly interested in obtaining all the pertinent medical records identified by the appellant at the time of the May 2012 video conference hearing, which have not already been associated with the claims file, to include records generated by health care providers named Hillmand, Myers, Peoples, McMurray, McCloud, Grossfield and Myers The RO should clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. The RO should assist the appellant in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate each claim on appeal in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the appellant and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant and her representative have 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). _________________________________________________ L. M. BARNARD 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) (2012).