Citation Nr: 1328570 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 05-04 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from May 1967 to May 1970. The Veteran died in September 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2009, when it was remanded for additional development and to satisfy notice requirements; in April 2010, when the Board reopened the claim of service connection for the cause of the Veteran's death, and remanded the matter on appeal for additional development; and in February 2012, when it was remanded for additional development. The Board notes that it has reviewed both the physical claims file and Virtual VA to ensure that the complete record is considered. The appellant had been represented by the Texas Veterans Commission. By a notarized statement in November 2011 that has been incorporated in the Veteran's claims file (and a copy of which is certified to have been delivered to Texas Veterans Commission) she revoked her designation of this representative; she is proceeding pro se. Nonetheless, Texas Veterans Commission has been receiving copies of all communications to the appellant, and responding on her behalf (to include a request for expeditious handling which appears to frustrate the development sought in accordance with VA's mandated duty to assist). At the very least this is a due process violation. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if action on her part is required. REMAND At the outset, the Board recognizes that the appellant's claim has been pending since 2003 and that there have been previous remands for additional development. While the Board regrets the delay involved in remanding this case again, it is also of the opinion that further development of the record is required to comply with VA's duty to assist the appellant in the development of the facts pertinent to her claim. See 38 C.F.R. § 3.159. The Veteran's death certificate reflects that he died in September 2000. His immediate cause of death was listed as sepsis due to (or as a likely consequence of) end stage renal failure and diabetes mellitus. Hypertension and cerebrovascular accident were listed as significant conditions contributing to death but not resulting in the underlying cause of death. The appellant has asserted that the Veteran's death was service-related. Specifically, she has alleged that one of the Veteran's death-causing disabilities, type II diabetes mellitus, resulted from exposure to herbicides in service and that he went on "clandestine" and "top secret" missions in service to Da Nang, Vietnam. Therefore, a critical question to be resolved in this claim is whether the Veteran served in Vietnam or was otherwise exposed to herbicides during the course of his service. To support her claim she submitted a "buddy statement" from a reported fellow- serviceman who (for proof that the Veteran served in Vietnam) provided documentation of his own pay being tax exempt based on combat zone service, and indicated that the Veteran served concurrently with him in the same unit in Da Nang Vietnam (and that the Veteran's own service finance records should verify this). Pursuant to the Board's prior remand instructions, the AMC sent a letter to the Defense Finance and Accounting Service (DFAS) in April 2013 requesting an explanation of the circumstances under which a serviceman would have been entitled to combat pay during the Vietnam Era (i.e., whether an award of combat pay would signify service in Vietnam). Later in April 2013, the DFAS responded by mailing a set of forms for the appellant to fill out and submit in order to obtain the Veteran's military pay records. In May 2013, the AMC mailed the appellant a notice letter notifying her that she needed to fill out the required information from DFAS and submit it. The appellant has not yet responded. In July 2013 the AMC issued a supplemental statement of the case (SSOC), and upon the [revoked] representative's response that they had nothing further to add and request for expeditious handling, returned the case to the Board. Given the cited due process violation, and the critical nature of the information sought, such expedited return of the case to the Board without completion of the development sought was premature, and requires corrective action. The Board observes that the appellant appears pro se, and may have required assistance in completing the form from DFAS. While the record shows an intent to provide her assistance, it does not show this was done. Given the critical (possibly dispositive) nature of the information sought, a higher level of assistance is indicated. Furthermore, the Board notes that the Veteran's service treatment records (STRs) are not currently in the claims file. A response from the National Personnel Records Center (NPRC) noted that the Veteran's STRs had been furnished to the RO in October 2003. The Board's April 2010 remand cited to the Veteran's STRs, which indicates that the STRs at one time were a part of the record. On remand, exhaustive development to locate the STRs and re-associate them with the claims file is necessary (and if they are not located, they must be certified to be irretrievably lost). Finally, in a May 1998 claim for pension filed prior to his death (and granted in August 1998), the Veteran noted that he had received treatment at the VA Medical Center (VAMC) in Houston, Texas for diabetes in 1990, for hypertension in 1995, and for renal failure in 1998. At present, the earliest VA treatment records from the Houston VAMC that have been associated with the claims file are dated in August 1994. Any VA records pertaining to treatment of diabetes dating as early as 1990 would have a bearing on the instant claim (and are constructively of record); therefore they must be secured. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following: 1. The RO should mail the appellant another copy of the set of DFAS forms for her to complete and submit. She should be contacted and offered assistance in completing the forms (and advised that she has the remainder of the one year period from the date of the May 2013 request to do so). She should be advised that her cooperation is paramount, as without it, VA will be unable to obtain the Veteran's military pay records, which are critical, and that if she does not timely provide the requested information, the matter will be processed under 38 C.F.R. § 3.158(a) (which provides that when evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim will be considered abandoned, and the appeal in the matter will be dismissed). Thereafter, the RO should complete development to ascertain whether any portion of the Veteran's pay was indeed "tax-exempt" based on his serving in a combat zone (in Vietnam) and make a formal finding of fact in that matter. 2. The RO must arrange for exhaustive development to locate the Veteran's STRs and re-associate them with the claims file. If they are not located, they should be certified to be irretrievably lost. 3. The RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran received during his lifetime which are not already associated with the record, to specifically include any records pertaining to treatment of diabetes dating as early as 1990. If any records requested are unavailable, the reason must be explained for the record, and the appellant must be so notified (through a formal memorandum of unavailability). 4. The RO should ensure that all development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claim on appeal. If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the appellant the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).