Citation Nr: 1316933 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-04 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for lung cancer as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to May 1963. He died in February 2010 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, (prior to his death), the Veteran filed a notice of disagreement to the June 2009 rating decision. A statement of the case (SOC) was issued in November 2009, and a substantive appeal was received in January 2010. During the pendency of the Veteran's appeal, Congress enacted the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). This change in law permits an eligible person to process any pending claims when a Veteran dies to completion. Such request must be filed not later than one year after the date of the Veteran's death and, as provided for in this new provision, a person eligible for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ." Id; 38 U.S.C.A. § 5121A (West 2002). Significantly, in August 2010 the RO received a Request for Substitution of Claimant upon Death of Claimant from the appellant. She noted in the request that she would like to continue the appeal that her late husband began in January 2010. The RO thereafter determined that the appellant could properly be substituted as the claimant in the pending appeal and, as such, issued a supplemental statement of the case (SSOC) as to the issue of whether service connection is warranted for lung cancer as a result of exposure to ionizing radiation. As the claim remained denied, the case has been forwarded to the Board for appellate consideration. 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 As noted, prior to the Veteran's death, he had perfected an appeal to the Board for his service connection claim for lung cancer as a result of exposure to ionizing radiation. The appellant was substituted for the Veteran in this appeal. At the March 2013 video conference the appellant testified that the Veteran was seen at the Elmendorf Air Force Base clinic for lung problems after his discharge from the Army. She stated that every ten years the Veteran was seen to have his lower lung x-rayed. He was never informed of the reason for the X-rays, but just to go in for them. She stated that she made a request to obtain the X-rays, including the reports, but they would not give them to her. As such records are from an Air Force medical facility and are therefore pertinent records in the possession of a federal agency, the Board must make an attempt to obtain them. 38 C.F.R. § 3.159(c)(2) provides that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency unless the records sought do not exist or the record indicates that further efforts to obtain those records would be futile. The Board has a duty to assist the appellant in obtaining records in the custody of the federal government. 38 C.F.R. § 3.159(c). Therefore, a remand is necessary to assist the appellant in determining the availability of and attempting to obtain any outstanding pertinent medical records from the Elmendorf Air Force Base clinic in Anchorage. 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 appellant should be sent the proper authorization form to allow the RO to obtain treatment records from the Elmendorf Air Force Base clinic in Anchorage (for x-rays of the Veteran's lungs and any X-ray reports since the Veteran's discharge from service in May 1963). The RO must make as many requests as are necessary to obtain relevant records from a Federal department or agency unless the records sought do not exist or the record indicates that further efforts to obtain those records would be futile. The RO should ensure that the claims file contains documentation that VA's duty to assist the Veteran in obtaining these records has been fulfilled. If the RO determines that it is unable to obtain the records from the Elmendorf Air Force Base clinic in Anchorage the RO should notify the appellant of this fact and give her the opportunity to obtain and submit any available copies of the pertinent record herself. 2. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue on appeal. The RO should issue an appropriate supplemental statement of the case, and give the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, 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 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). _________________________________________________ ALAN S. PEEVY 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 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).