Citation Nr: 1549911 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 14-06 178 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Basic eligibility for VA death benefits. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The appellant seeks to establish entitlement to VA death benefits (specifically, dependency and indemnity compensation) based on her deceased husband's service. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2013 decision in which the RO determined that the appellant's deceased husband did not have the military service necessary to establish basic eligibility for VA death benefits. In August 2013, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2014, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In November 2014, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further action, to include additional development of the evidence. After taking further action, the AOJ continued to deny the claim (as reflected in a September 2015 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. Around the time of the Board's remand in November 2014, the AOJ received a statement from the appellant wherein she requested that she be scheduled for a personal appearance. However, in October 2015, she informed the AOJ (with her daughter's assistance) that she no longer wished to appear. The Board notes that, in addition to the paper claims file, the Veteran also has records stored in paperless, electronic Veterans Benefits Management (VBMS) and Virtual VA files. A review of the documents in the electronic files reveals that such are either duplicative of the evidence in the paper claims file or are irrelevant to the issue presented. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015). For the reasons expressed below, the matter on appeal is again being remanded to the AOJ. VA will notify the appellant when further action, on her part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In the November 2014 remand, the Board instructed the AOJ, among other things, to contact the Department of the Army and request verification of the appellant deceased husband's service. In February 2015 correspondence, the AOJ informed the appellant that, in order to help expedite the service department's research, she needed to submit a certified copy of her deceased husband's PA AGO Form 23 (Affidavit for Philippine Army Personnel). The appellant was informed that if she wanted VA to obtain the form on her behalf, she should submit a signed and dated statement authorizing VA to do so. In May 2015, the appellant submitted correspondence wherein she indicated that she had been unable to obtain the requested evidence for reasons related to her age, health, and financial status. Attached to the correspondence was a signed and dated statement authorizing VA to obtain her deceased husband's PA AGO Form 23 on her behalf. Thereafter, the record does not reflect that the AOJ made any effort to obtain the PA AGO Form 23. Instead, the AOJ forwarded the previously available documents to the Department of the Army and requested verification of service. Significantly, the response received from the Army indicated, in pertinent part, that without an AGO Form 23 and corresponding unit roster, the deceased husband's service could not be verified. Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate her claim, to include relevant records from non-Federal sources. 38 U.S.C.A. § 5103A(a), (b) (West 2014); 38 C.F.R. § 3.159(c)(1) (2015). Here, it appears that VA's duty to assist has not been fulfilled. Although the AOJ put the appellant on notice that additional evidence was required in order to substantiate her claim, and invited her to submit a release so that VA could assist her in procuring it, the record does reflect that the AOJ undertook any independent effort to obtain the PA AGO Form 23 after receiving the appellant's authorization. Hence, further development is required. As a final matter, the Board notes that in November 2014, around the time of the Board's remand, the AOJ received a statement from the appellant wherein she requested that a representative be appointed on her behalf. The record does not reflect that she has been provided a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) for that purpose. On remand, that should also be accomplished. Accordingly, this matter is hereby REMANDED for the following action: 1. Provide the appellant a VA Form 21-22 so that she may appoint a representative, if she wishes to do so. 2. Make efforts to obtain a copy of any AGO PA Form 23 (Affidavit for Philippine Army Personnel) pertaining to the appellant's deceased husband from the office of the Adjutant General of the Philippine Army. Efforts should include, but need not necessarily be limited to, an initial request for the records and, if a response is not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). 3. If the records sought are not obtained, notify the appellant and her representative, if any, of the identity of the records that were not obtained; explain the efforts taken to obtain them; describe the further action to be taken regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the appellant submits the records VA was unable to obtain; and inform the appellant that she is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). 4. If an AGO PA Form 23, or any other new evidence pertaining to the appellant's deceased husband's claimed service, is received, ask the Department of the Army to again attempt verification of the appellant deceased husband's service. In so doing, provide the service department a copy of the new evidence. 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish the appellant and her representative, if any, an appropriate SSOC that includes clear reasons and bases for all determinations, and afford her the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 2014). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).