Citation Nr: 1332232 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-37 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to non service-connected death pension benefits. ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served as a Guerilla in the Armed Forces of the Philippines from April 1944 to February 1946; and on active duty in the U.S. Armed Forces from July 1946 to April 1947 as a member of the Philippine Scouts. He died in February 1979. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In a decision in May 2011, the Board denied the issues of entitlement to service connection for the cause of the Veteran's death; entitlement to non service-connected death pension benefits; and entitlement to accrued benefits. The appellant appealed, pro se, the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision in April 2012, the Court vacated that part of the Board's May 2011 decision which denied entitlement to service connection for the cause of the Veteran's death and entitlement to non service-connected death pension benefits; and remanded those issues for further development. 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 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 February, 1979, the Veteran died from an abdominal tumor, and in September 2008 the appellant filed a claim for dependency & indemnity compensation (DIC). This case needs to be remanded because the RO/AMC did not comply with the Board's remand directives in its November 2012 remand. Previously, the RO submitted a request to the National Personnel Records Center (NPRC) for the Veteran's service treatment records. In February 2009 the NPRC responded that it needed the Veteran's complete unit information in order to facilitate the request. In May 2009 the appellant submitted a Certificate from the Armed Forces of the Philippines Office of the Adjutant General, which describes the Veteran's unit information. In November 2012, the Board remanded the case for a follow-up request by the RO for the Veteran's service treatment records, as well as his service personnel records. 38 U.S.C.A. § 5103A(b)(3); C.F.R. § 3.159(c)(2); see also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006); cert. denied 127 S. Ct. 2265, 167 L. Ed. 2d 1093 (2007) (regarding VA's heightened duty to assist where service treatment records are missing). On remand, the AMC requested the Veteran's service personnel records, dating from April 1944 to February 1946, from the NPRC in November 2012. In December 2012, the AMC also supplied the Service Department with the Veteran's unit information and submitted a request for re-verification of the Veteran's service and his service medical records. In March 2013, the Service Department responded that no changes were warranted in its prior negative certification. Initially, it is not clear whether a negative response has been received from the NPRC with regard the RO's November 2012 request for the Veteran's "personnel file including any pay records, dating from 04/1944 to 02-1946; and from 07-1946 to 04-1947." In December 2012, the NPRC only responded that the request for finance records was being transferred to the appropriate custodian, but no further response has been received. Additionally, the Board instructed that the RO/AMC should provide the appellant with a written notice of the unavailability of the Veteran's service personnel and/or service treatment records that meets the requirements 38 C.F.R. § 3.159(e) (2012), if such records are determined to be unavailable. However, this has not been done. RO/AMC compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, another remand is required so that the appellant can be given a proper notice of the unavailability of the Veteran's service treatment and/or service personnel records. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the NPRC to verify the availability of the Veteran's service personnel records, dated from April 1944 to February 1946 and July 1946 and April 1947. If such records are unavailable, and further efforts to obtain such records would be futile, a formal finding should be placed which details the efforts that were made to obtain the records. 2. Provide the appellant with a proper notice that includes (a) the identity of the specific records that could be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the appellant is ultimately responsible for providing the evidence, as required by 38 C.F.R. § 3.159(e). The appellant must then be given an opportunity to respond. The appellant should be advised that she can submit alternative evidence to support her contention that service connection for the Veteran's cause of death and that she is entitled to nonservice-connected death pension. This evidence may take the following forms, however, the appellant may submit any other evidence she finds appropriate: statements from service treatment personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom the Veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If either benefit sought remains denied, provide a additional supplemental statement of the case to the appellant, and return the appeal to the Board for appellate review, after this pro se appellant has had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).