Citation Nr: 1343264 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-08 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for multiple system atrophy (MSA), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Sean Kendall, Attorney-At-Law ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1967 to September 1986. The Veteran passed away in February 2012; the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to MSA. The Appellant had requested a hearing before a Veterans Law Judge, to be held at the RO; she withdrew her request in August 2013. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA system to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Initially the Board notes that the current appeal was initiated prior to the Veteran's death, and perfected by his surviving spouse in March 2012. Accordingly, the appeal was pending at the time of the Veteran's death. His spouse would therefore appear entitled to prosecute the pending claim to secure any benefits which would have been due and owing at the time of his death, as a substituted claimant. 38 U.S.C.A. § 5121A. It appears that the RO recognized her right to such, but the file fails to indicate that she was ever formally notified of her status, or the impact of such on her ability to pursue the appeal. On remand, the Appellant should be formally notified that she has been substituted as the claimant. Turning to the merits of the claim, the electronic Virtual VA file indicates that a separate claim for service connection for the cause of the Veteran's death was adjudicated by the St. Paul, Minnesota, Pension Center as part of a Dependency and Indemnity Compensation (DIC) claim. That claim was granted in a July 2012 rating decision. The decision indicates consideration of evidence not otherwise associated with the file, to include the Veteran's death certificate. As it appears there may an additional separate claim folder in existence at the Pension Center which contains potentially relevant evidence, remand is required to associate the folders. Finally, VA attempted to obtain the Veteran's service treatment records (STRs) from the National Personnel Records Center (NPRC) in September 2010; NPRC responded that it did not have the records. They had been sent to the Waco, Texas, RO directly from Ft. Hood, Texas, in connection with a claim for VA benefits filed at the time of his separation from service. The Denver RO contacted the Waco RO to obtain the records and any associated file, but Waco responded in October 2010 that "incoming mail" was not located. The Denver RO certified the STRs as unavailable and notified the Veteran of such in December 2010 correspondence. However, it appears that the Waco RO's answer is not responsive to the question asked. Denver asked for a search of the "file bank" for the STRs and any other claims file. Waco appears to have only checked the incoming mail files. The STRs were not recent receipts likely to be in "incoming mail;" they were submitted by Ft. Hood almost 15 years earlier. Therefore, remand is required for a comprehensive search of the Waco RO's complete file cabinets for an older, established file on the Veteran and any associated STRs or other information. The Board would additionally note that the current records reflect no indication of an earlier claim or any adjudication. Accordingly, the case is REMANDED for the following action: 1. Contact the Appellant and inform her that she has been substituted as the claimant pursuant to 38 U.S.C.A. § 5121A. If formal substitution has not in fact been accomplished, such determination must be made. Notice should include reference to her ability to submit additional information in support of the claim. 2. Contact the Waco RO and request a full search of the physical files for a claims folder for the Veteran, and/or STRs, as provided by the service department in 1986 or 1987. Such search must include any archived files since 1986. The RO must certify that an exhaustive search for the missing STRs and file were made if they are not located. 3. Contact the St. Paul, Minnesota, Pension Management Center and secure a complete copy of the claims folder and all documentation associated with the July 2012 adjudication of the Appellant's DIC claim. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Appellant and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, 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 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). _________________________________________________ DAVID L. WIGHT 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).