Citation Nr: 1341786	
Decision Date: 12/18/13    Archive Date: 12/31/13

DOCKET NO.  10-36 160A	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Whether the death of the Veteran was incurred in the line of duty (LOD) for the purposes of entitlement to Department of Veterans Affairs death benefits.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from May 2003 to January 2009.  The Veteran died in January 2009.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 Administrative decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which determined that the Veteran's death was not incurred in the LOD and was due to willful misconduct.  Thus, the claim for VA death benefits was also denied.  The appellant has appealed the determination that the Veteran's death was not incurred in the LOD and was due to willful misconduct.  At her August 2012 Travel Board hearing and in written correspondence, her representative also indicated that there was clear and unmistakable error in the Administrative decision; however, that decision has not become final and is in fact on appeal.  

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

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that the appellant is afforded every possible consideration.

The appellant's representative has requested that this case be remanded for the Veteran's service treatment records, service personnel records, and any other pertinent service documents to be obtained.  Although he also stated that the Travel Board transcript should be associated with the record, it is now part of the record.  The Veteran's service documents are not contained in his file or in VA's Virtual System.  

Accordingly, the case is REMANDED for the following action:

1. Associate with the record the Veteran's service treatment records, service personnel records, and any other pertinent service documents, to be obtained from the appropriate service department and/or the National Personnel Records Center.  

2. Associate with the record any autopsy or hospitalization records.

3. Associate with the record any police reports prepared in conjunction with the Veteran's motorcycle accident in January 2009.

4. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the appellant should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

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).



_________________________________________________
K. PARAKKAL
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).