Citation Nr: 1323488	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  11-30 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an effective date for special monthly benefits for the need of aid and attendance earlier than January 4, 2010.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Layton, Counsel



INTRODUCTION

The Veteran had active duty service from July 1947 to January 1961.  He died in February 1961.  The appellant is his surviving spouse. 

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA); which granted the appellant entitlement to aid and attendance allowance.  The award was made effective January 4, 2010.  In April 2012 and January 2013, the Board remanded the claim for additional development.

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's claim for aid and attendance allowance was received by VA on January 4, 2010.  The appellant has asserted that her need for aid and attendance began following a heart surgery that occurred prior to January 4, 2010.  In April 2012 and January 2013, the Board remanded the claim to obtain the medical records relevant to the appellant's heart surgery.  These records were needed because 38 C.F.R. § 3.402(c)(2) states that, for the purpose of granting aid and attendance benefits for a surviving spouse, the date of departure from hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim.  38 C.F.R. § 3.402(c)(2).

In January 2013, the AMC requested the applicable records for the appellant from Centennial Heart, Heart Team LLC, Nell Nestor, and Tristar Centennial Medical Center.  In March 2013, the AMC informed the appellant that none of those sources had responded to the request for information, and the AMC sent a second records request to each institution.  After waiting 60 days with no response from either the appellant or any of the medical sources, the AMC issued a Supplemental Statement of the Case and returned the appeal to the Board.

Correspondence in the appellant's Virtual VA file reveals that subsequently, in June 2013, Centennial Medical Center informed VA that they could not locate any of the records that VA had requested.  However, a careful examination of the correspondence received from Centennial reveals that they searched for records for the deceased Veteran and not his surviving spouse (the appellant).  Consequently, remand is required to find out if Centennial Medical Center has any records concerning treatment for the appellant.

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.  In accordance with the VA forms 21-4142 previously submitted by the appellant, the AMC/RO should gather any outstanding treatment records from Centennial Medical Center and associate them with the claims file.  

The AMC/RO should ensure that Centennial Medical Center searches for records pertaining to the appellant and not her deceased spouse.

If, after making reasonable efforts to obtain named records the AMC/RO is unable to secure same, the AMC/RO should notify the appellant and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain those records; and (c) describe any further action to be taken by the AMC/RO with respect to the claim.  The appellant must then be given an opportunity to respond.

2.  When the development requested has been completed, the case should be reviewed by the AMC/RO on the basis of additional evidence.  If the benefit sought is not granted, the appellant should be furnished a supplemental statement of the case (SSOC) and be 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).





_________________________________________________
DAVID L. WIGHT
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).