Citation Nr: 1341497 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 05-39 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from October 1967 to December 1968. The Veteran died in August 1992 and the appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Paul, Minnesota, denying the claim currently on appeal. The appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge in December 2006. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In July 2007, the Board denied service connection for the cause of the Veteran's death. In October 2008, the Board vacated the July 2007 decision and remanded the matter for further development. The claim was once again remanded in September 2010 as the appellant would not waive RO adjudication of newly received evidence. In June 2011, the Board again denied the appellant's claim. Both the appellant, through her attorney, and OGC filed a Joint Motion for Remand ("Joint Motion") with the Court in December 2011. Later that same month, the Court granted the Joint Motion, vacating and remanding the Board's July 2011 decision. The Board again remanded this case in December 2012 and May 2013 to the agency of original jurisdiction for development and additional adjudication. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the Joint Motion, both parties successfully argued that VA had not complied with the duty to assist the appellant. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Both parties contended that there were additional relevant private treatment records from St. Paul Ramsey Hospital (now known as Regions Medical Center), St. Paul, Minnesota, which had not been obtained and associated with the claims file. In May 2013, the appellant's claim was remanded, in part, to provide the appellant with "Authorization and Consent to Release Information" forms (VA Form 21-4142, so that VA may obtain identified private treatment records on her behalf. A review of the Veteran's Virtual VA paperless claims file reveals that in October 2013 the appellant's representative submitted several "Authorization and Consent to Release Information" forms regarding treatment dated from December 1968 to August 1992 from Fairview South Hospital, Regions Medical Center, and Fairview Riverside University Hospital for the Veteran's liver disease. To date, the Agency of Original Jurisdiction has not made any attempt to obtain these records and associate them with the Veteran's paper claims file or Virtual VA paperless claims file in compliance with the Board's May 2012 remand directive and the procedures outlined in 38 C.F.R. § 3.159(e)(2) (2013). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Stegall v. West, 11 Vet. App 268 (1998). The Board finally finds that, if additional records are obtained, the claims file should be forwarded to the prior VA examiner for an addendum concerning the contended causal relationship between the cause of the Veteran's death and active service. Accordingly, the case is REMANDED for the following action: 1. Request all private treatment records identified in the completed "Authorization and Consent to Release Information" form (VA Form 21-4142) including records from Fairview South Hospital, Regions Medical Center, and Fairview Riverside University Hospital dated from December 1968 to August 1992, which have not been obtained already. If any records are unavailable, the appellant should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claim, and she should be advised to submit any records in his possession. 2. Only after the completion of #1 above and if additional relevant treatment records are associated with the claims file, then forward the claims file, Virtual VA paperless claims file, and a copy of this remand to the prior VA examiner for addendum containing an opinion concerning the contended causal relationship between the cause of the Veteran's death and active service. If the prior VA examiner is unavailable, then forward to an appropriate examiner. Based on a review of the complete claims file, to include any records obtained since March 2009 and/or in response to this remand, the VA examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that, prior to his death, the Veteran's cirrhosis was related to active service or any incident of service. This examiner also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cirrhosis contributed substantially or materially to his death from pneumonia complications and severe chronic obstructive pulmonary disease (COPD). The examiner is advised that the appellant (the Veteran's surviving spouse) contends that the Veteran experienced hepatitis C in active service which caused cirrhosis that subsequently contributed to or caused his death. A complete rationale must be provided for any opinions expressed. 3. Review all evidence received since the last prior adjudication and readjudicate the appellant's claim. If the determination remains unfavorable to the appellant, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the appellant and her attorney. Thereafter, the case should be returned to the Board for further appellate consideration, 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. 2013). _________________________________________________ J.A. MARKEY 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) (2013).