Citation Nr: 1328051	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  07-31 144	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to dependency, indemnity and compensation (DIC) based on service connection for the cause of the Veteran's death.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's sons



ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to February 1971.  The appellant is his widow.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which found that new and material evidence has not been submitted to reopen the claim for service connection for the cause of the Veteran's death.  

The appellant and her witnesses offered testimony before the undersigned at a Board videoconference hearing in August 2008.  A transcript is of record.  

In October 2008, the Board reopened the claim and remanded it for additional development.  In September 2011, the Board again remanded the claim.  

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 last remand explained that Kettering Memorial Hospital (KMH) records and treatment records from a Kettering physician were not of record.  The AMC was instructed to obtain these records with assistance from the appellant.  

The record shows in January 2012 the appellant was sent a letter with VA Form 21-4142, Authorization and Consent to Release Information.  In March 2012, the appellant enclosed a signed VA Form 21-4142.  No further follow up is documented. 

A Board remand imposes upon VA's Secretary a duty to ensure compliance with the terms of the remand.  When the AMC fails to comply, the Board must return the claims file for completion of previously requested action.  Stegall v. West, 11 Vet. App. 268 (1998).  

Accordingly, the case is REMANDED for the following action: 

1.  Ask the appellant to complete a new authorization to obtain records of the Veteran's treatment at Kettering Memorial Hospital in March 2004.  Explain that the previous authorization expired without VA taking action to request the records.

If the appellant fails to re-provide any necessary authorizations, she should be informed that she may submit the evidence herself.  She should be informed of any records that cannot be obtained.  If the records cannot be obtained, the appellant should be so advised, and should also be told of the efforts made to obtain the records.  

2. If additional records are obtained, the persons who provided the May 2010 VA medical opinion should be asked to review the claims file, including the new evidence, and be asked whether the new evidence changes the opinions provided in May 2010.  

If the persons who provided the May 2010 opinion are unavailable, another physician should review the claims folder, including the newly received evidence, and provide an opinion as to whether the Veteran's exposure to herbicides in Vietnam caused or contributed to the fatal pancreatic cancer.  

The reviewer should provide reasons for this opinion.  

3. If any benefit on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order.  

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 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).  



_________________________________________________
Mark D. Hindin
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).