Citation Nr: 1324207 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 08-37 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had service in the Philippine Commonwealth Army from December 1941 to August 1942 and from September 1945 to June 1946. Records show that he was a prisoner of war (POW) from April 1942 to August 1942. He died in January 2002, and the appellant has filed this claim as his surviving spouse. This appeal comes before the Board of Veterans Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In March 2010, the Board remanded the claim for further development. The issue of entitlement to benefits under the provisions of 38 U.S.C.A. § 1318 was also addressed and denied by the Board at that time. In an April 2011 decision, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. The Veteran subsequently appealed the Board's April 2011 decision to the United States Court of Appeals for Veterans Claims (Court), and in a January 2013 Order, the Court vacated that decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Virtual VA claims file has been reviewed, but the documents are duplicative of the evidence contained in the paper claims file. 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 In the Joint Motion, the parties agreed that the Board failed to comply with the duty to assist. Specifically, they noted that the Board had remanded the case in March 2010, in pertinent part, to request that the appellant provide clinical records showing treatment for pneumonia or other conditions that the Veteran might have had leading up to his death. In the alternative, the appellant was asked to provide an authorization for VA obtain medical records for at least one year preceding the Veteran's death. The appellant provide such an authorization in May 2010, but it does not appear that the RO associated the authorization with the claims file prior to its return to the Board. The record also does not reflect that the RO took any action on such authorization prior to the return of the claims file to the Board for adjudication. Unfortunately, this authorization expired in November 2010. Thus, on remand, the appellant should be asked to submit any outstanding medical records or to provide authorization for VA to obtain them on her behalf. Additionally, the parties to the Joint Motion pointed out that the absence of such records may have rendered the July 2010 VA medical opinion inadequate or incomplete. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should contact the appellant and request that she submit any outstanding clinical records for the Veteran dating back to at least one year prior to his death. She should be informed that, in the alternative, she may provide the names and addresses of any health care providers who provided treatment with authorization for VA to obtain such evidence on her behalf. A specific request should be made for private medical records from Dr. R.R. identified in the May 2010 VA Form 21-4142 (initials used to protect privacy). If any of the records requested are unavailable, the RO/AMC should clearly document the claims file. 2. If any portion of the July 2010 VA medical opinion is deemed inadequate or inaccurate based upon the receipt of additional medical records, the RO/AMC should obtain an additional medical opinion that considers such evidence. A complete rationale should accompany any opinion provided. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant should be furnished a Supplemental Statement of the Case 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 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). _________________________________________________ JESSICA J. WILLS 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).