Citation Nr: 1325868 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-29 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active military service from June 1948 to June 1950, from September 1950 to July 1957 and from October 1957 to February 1969. He was a recipient of the Purple Heart and Combat Infantry Badge. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO). 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 is seeking service connection for the cause of the Veteran's death. A preliminary review of the record shows that this matter is not ready for appellate disposition as the Veteran's claim file, including the electronic Virtual VA folder, is incomplete. A remand is required in this case. In her most recent claim for benefits, the appellant requested that the RO to obtain outstanding treatment records from the Murfreesboro and Nashville VA Medical Centers (VAMC) in Tennessee. The October 2011 Statement of the Case indicates that a negative response was received. However the Board can find no record of a negative response from either VAMC associated with the physical claims file or in Virtual VA nor is there any evidence of an attempt by the RO to obtain such records. The availability and relevance of these clinical records is unclear; the United States Court of Appeals for Veterans Claims (Court) has held, however, that VA may be obligated to assist a claimant where he or she specifically requests certain assistance in acquiring medical evidence which might substantiate their claim, and where the evidence before the Board raises notice of pertinent records which may constitute new and material evidence sufficient to justify reopening a prior claim. See White v. Derwinski, 1 Vet. App. 519, 520-21 (1991) and Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Thus, a remand is required to obtain documentation detailing the negative response received from the facility that explains the reasonable efforts made to obtain the evidence and why the evidence could not be obtained. If such documentation cannot be produced, the Agency of Original Jurisdiction (AOJ) must undertake an additional search to attempt to obtain these records as they may contain medical findings and other conclusions that might be determinative in the disposition of the claim and the appellant's intent is to have them submitted for review. While the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the appellant is afforded every possible consideration. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) Accordingly, the case is REMANDED for the following action: 1. The AMC/RO shall attempt to obtain documentation detailing the negative response allegedly received by the RO from the Murfreesboro and Nashville VAMCs in Tennessee, as described in the October 2011 SOC. Such documentation should include an explanation of why the sought after evidence is unavailable, the additional efforts to obtain the information would be futile, and that the appellant was informed of this. 2. In the event such documentation cannot be obtained, the AMC/RO shall conduct an additional search for records of treatment that the Veteran may have received at the Murfreesboro and Nashville VAMCs in Tennessee. The reasonable efforts to obtain such records must be documented. If the AMC/RO is unable to obtain any pertinent evidence identified by the appellant, so inform her and request that she obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the Veteran's claims folder or Virtual VA folder, as appropriate. 3. After completing the requested action, the AMC/RO should then review the entire completed claims file, arrange for any further development warranted (to include obtaining any necessary medical opinions) and re-adjudicate the claim. If the benefits sought on appeal remain denied, furnish the appellant and her representative an appropriate SSOC and give them an appropriate time period in which to respond. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JONATHAN B. KRAMER 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 Court. 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).