Citation Nr: 1318179 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 05-00 119 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to basic eligibility to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: Glorioso S. Ganuelas, Agent ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a deceased individual who had service with the Molokai-Lanai Volunteers and the Maui Volunteers. This matter initially comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the RO in Manila, the Republic of the Philippines. The Board previously considered this appeal in October 2006 and denied the appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in January 2008 the Court granted the Secretary's Motion for Remand and vacated the October 2006 decision. The Board denied the claim once again in April 2009, and the appellant appealed the decision to the Court. In a February 2011 Memorandum Decision, the Court vacated the April 2009 decision and remanded the claim for additional consideration. The Board remanded the claim in October 2011 to comply with the February 2011 Memorandum Decision. Further development was needed to ensure compliance with the Court's February 2011 Memorandum Decision, so the Board again remanded the claim in January 2013. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The issue of basic eligibility to nonservice-connected death pension benefits is being remanded to the RO. 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 Unfortunately, it is again necessary to remand this appeal, because all of the development requested pursuant to the January 2013 Board remand has not been completed. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives). VA's duties to notify and assist require VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), and this duty entails the ROs requests for verification of service from the National Personnel Records Center (NPRC), or service department. Pursuant to the January 2013 Board remand, action item paragraph 1, the RO contacted the NPRC in March 2013 to re-verify the decedent's service, to include his alleged service in the Molokai-Lanai Volunteers and Maui Volunteers, and enclosed copies of the necessary documents as listed by the remand. However, the record does not reflect that the RO properly carried out action item paragraph 2 of the January 2013 Board remand. Action item paragraph 2 reads as follows: After any response is received in connection with request for development, the RO should review its prior attempts to verify the decedent's service. If the record continues to indicate that records are unavailable or fire-related, the RO should notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims. The appellant should further be informed of alternative sources for obtaining sufficient evidence to validate her claims (e.g., buddy statements, unit history searches, etc.). The appellant must then be afforded a reasonable opportunity to respond. The record indicates that service records were fire-related, but there is no indication that the RO informed the appellant of that fact or of the efforts that the RO made to obtain these records. The appellant was sent a notice in letter dated February 19, 2013. Unfortunately, the February 19, 2013 letter is incomplete as it does not detail the necessary information for the appellant to support her claim with respect to establishing the decedent's status as a veteran. She was not informed of alternative sources for obtaining sufficient evidence to validate her claims. Rather, the February 13, 2013 appears to be a general letter regarding a claim for death benefits without regard for the type of notice she needs regarding evidence of the decedent's status. Pursuant to the duty to assist, VA will make as many requests as are necessary to obtain relevant records, including service medical records, from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. After continued efforts to obtain federal records, if VA concludes it is reasonably certain they do not exist, VA is to notify the claimant of this fact. 38 C.F.R. § 3.159(e). In such a case, VA is to provide oral or written notice of the fact they were unable to obtain the records and make a record of any oral notice conveyed to the claimant. The notice must advise the claimant of the identity of the records VA is unable to obtain, provide an explanation of the efforts VA took to obtain the records, provide a description of further action VA would take regarding the claim, including, but not limited to notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA is unable to obtain and provide notice that the claimant is ultimately responsibility for providing the evidence. Id. If upon further searching, the RO determines the records are unavailable, the RO must notify the appellant in accordance with 38 C.F.R. § 3.159(e) and provide her with the opportunity to submit any additional records in her possession and any alternate source evidence that may substantiate her claim. 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 should take appropriate action to address the January 2013 remand, and carry out action item paragraph 2: The RO should send to the appellant a revised duty to assist letter which informs her of the RO's prior attempts to verify the decedent's service, to include the notice of records as being fire-related, and explain VA's efforts to obtain verification of service, pursuant to Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) 2. After completing all indicated development to the extent possible, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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).