Citation Nr: 1324796
Decision Date: 08/05/13	Archive Date: 09/24/13

DOCKET NO.  12-02 310	)        DATE AUG 05 2013

On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit. Michigan

THE ISSUES

1. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318, to include whether there was clear and unmistakable error (CUE) in an October 2008, rating action that failed to assign an effective date earlier than October 25, 2007, for a total rating based on individual unemployability (TDIU).

2. Entitlement to service connection for the cause of the Veteran's death.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL 

Appellant

ATTORNEY FOR THE BOARD 

J. Hager, Counsel

INTRODUCTION

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 Veteran served on active duty from February 1944 to November 1945. He died in January 2010 and the appellant claims as his surviving spouse. He sustained significant wounds during combat in World War II on Iwo Jima. He successfully threw 3 enemy grenades out of his foxhole, when a 4th went off in his hand, resulting in traumatic amputation of his major hand. He sustained additional disabilities in that action as discussed below.

These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In September 2012, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record.

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.

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REMAND

This case was originally developed on the issue of entitlement to DIC benefits. The statement of the case and other actions have essentially discussed the two primary bases of entitlement to those benefits, that is service connection for the cause of death or entitlement under 38 U.S.C.A. § 1318. Testimony on both issues was taken at a videoconference hearing conducted in September 2012.

Testimony at that hearing, as well as other documents on file have essentially raised the issue of whether there was CUE in the assignment of the October 2007 effective date for the grant of TDIU. This matter has not been subject to initial review by the RO or AMC. In order to provide due process protection, initial review should be undertaken prior to an appellate decision being entered.

It is essentially contended that the Veteran had been unemployable since the late 1970's, and that proper exams and development would have established that fact. In part it was contended that there was no mention of seizures that the Veteran had over the years. It was noted these may have been related to the shrapnel wound of the head he sustained in combat. It is noted that following his outstanding service to his Country, the Veteran returned to work, and apparently worked into the mid 1970's variously for a steel company, driving truck, and apparently operating a crane.

It is noted that a TDIU claim was denied by the Board in December 1977. In August 1978, a claim for benefits was received, with statement's from the Veteran's employer and spouse indicating that he was unemployable due to his multiple disabilities. It is noted that he had a combined 80 percent rating for war wounds at that time, and was awarded special monthly compensation based on the loss of the right hand, which had been blown off in combat. The TDIU was not addressed; a subsequent unappealed rating action noted that no increase in the individual ratings was warranted.

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Evidence on file also suggests that there may be treatment records pertinent to these claims which should be obtained. When seen for a VA examination in 1950, it was noted that the Veteran was receiving treatment at the VA. When seen privately in 1998, it was noted that the VA was getting treatment at the Ann Arbor VA medical center. Included was a history of a blood disorder, secondary to taking Motrin some years previously. It is unclear whether this may have been for the service connected disorders, and if so, whether it might be related to the cause of death.

All VA medical records should be obtained. Similarly, any records related to the terminal treatment, apparently at a private hospice, should also be obtained. The appellant should be offered the opportunity to identify any other locations of medical treatment over the years, and attempts to obtain all records should be undertaken.

In view of the foregoing, this case is REMANDED for the following actions:

1. Appellant should be contacted and asked to provide any information she has of any medical treatment that the Veteran had during his lifetime. She should be asked to provide release forms for any private records, including those from the terminal treatment at what appears to be a hospice. All attempts to obtain records should be documented in the claims folder.

2. Obtain all records of VA treatment, from the days following separation from service until the date of death, to the extent records are not on file. If records need to be obtained from archives, they should be obtained. Records of all treatment should be associated

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with the claims folder. Again, all attempts to obtain records should be documented in the claims folder.

3. Readjudicate the current claims, to include the question of CUE. If during review, it appears that there is a medical question raised which should be answered, the case should be forwarded to an appropriate reviewer for entry of an opinion. If the benefits sought are not granted, the appellant and her representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order.

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).

MICHAEL D. LYON 
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.

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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).

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