Citation Nr: 1602068 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 14-36 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to accrued benefits based on a pending claim for service connection for atherosclerotic aorta. 2. Entitlement to accrued benefits based on a pending claim for service connection for a respiratory disability (claimed as pneumonia, pleural effusions, coughing, and tuberculosis). 3. Entitlement to accrued benefits based on a pending claim for service connection for headaches. 4. Entitlement to accrued benefits based on a pending claim for service connection for rheumatism. 5. Entitlement to accrued benefits based on a pending claim for service connection for arthritis. 6. Entitlement to accrued benefits based on a pending claim for service connection for anemia. 7. Entitlement to accrued benefits based on a pending claim for service connection for bilateral hearing loss disability. 8. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1946 to February 1949. He died in October 2011; the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The record before the Board consists of a paper claims file, as well as electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). REMAND The Veteran submitted a claim for service connection for the above-noted disabilities in June 2011. He believed that his disabilities were service-connected because they began in service or were related to his exposure to radiation in service. Initially, the Board notes the RO has not obtained a complete copy of the Veteran's service treatment records (STRs) or official military personnel file (OMPF) for his period of active duty. Although the RO drafted a formal finding of unavailability for the record in September 2011, which indicates all efforts to obtain those records have been exhausted and additional attempts would be futile, the Board finds additional development is possible and necessary in this case. The RO initiated an M01 request to the Personnel Information Exchange System (PIES) in July 2011 in an attempt to obtain the Veteran's STRs. PIES provided a response that same month indicating the Veteran's records were likely burned in the National Personnel Records Center fire in 1973. However, PIES also indicated the RO should submit an M05 request for any available sick call or morning reports if necessary information could be obtained. A review of M21-1, Part III, Subpart iii, Chapter 2, Section D indicates the information necessary to submit such request consists of the Veteran's name, organizational assignment, dates of treatment, and hospital if applicable. The Veteran's presently obtained service records indicate he was assigned to the 575th Ordinance Company, and was admitted to sick call on October 26, 1948. In a September 2011 formal finding, the RO determined no additional development could be initiated to obtain the Veteran's STRs, because the Veteran failed to complete an NA Form 13055; however, pursuant to M21-1, Part III, Subpart iii, Chapter 2, Section E, an NA Form 13055 is only necessary when there is insufficient information of record to complete the request. In this case, there is sufficient evidence to complete the M05 request, and as such, this should be done. In addition, the Board observes the RO has not initiated any development to obtain the Veteran's OMPF. Since the Veteran has asserted exposure to ionizing radiation, this development is also indicated. Finally, the Board notes the Veteran also stated his records may be located "in the Embassy...where records was kept." There is no indication as to which Embassy the Veteran was referring, but the RO has not initiated any development to obtain more specific information that would allow for a meaningful inquiry into his assertion. Since the above-noted disabilities were denied because the RO could not confirm their incurrence in service, all indicated development to obtain the Veteran's STRs and OMPF must be completed. Turning to the issue of entitlement to service connection for the cause of the Veteran's death, the Board notes the appellant's claim was denied in a July 2013 RO decision, because the Veteran's death certificate lists his cause of death as "senile debility." The appellant has since submitted a report from the Register of Deaths office, which indicates the Veteran's official causes of death were hypertension and pneumonia. Of record are private treatment records from the Don Amadeo Memorial General Hospital and Urdaneta Sacred Heart Hospital, which reveal treatment for both pneumonia and pleural effusions. In addition, the Veteran also asserted he was treated for a respiratory disability in service. Although the RO indicated the July 2013 decision was based on the evidence existing in the file at the time of the Veteran's death, the Board notes the appellant's claim for accrued benefits should have been construed as a request to be substituted as the claimant with respect to the accrued claims, thereby allowing her to provide additional evidence relative to the merits of those appeals. Since the appellant's entitlement to service-connected death benefits is contingent upon a finding that the Veteran's death was related to his military service, the development to obtain the above-noted service documents must be effectuated prior to a decision of this issue on appeal. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should render a determination as to whether the appellant is a proper substitute. If the determination is unfavorable to the appellant, she should be informed of her appellate rights with respect to the determination. 2. The RO or the AMC should undertake all steps necessary to obtain the Veteran's STRs and OMPF, to specifically include a PIES 050 and M05 request, to determine whether additional service records are available. If any requested records are not available, the record should be annotated to reflect such and the appellant notified in accordance with 38 C.F.R. § 3.159(e) and M21-1 Part I, Chapter 1, Section C. 3. The RO or the AMC should undertake any other development it determines to be warranted, to include any indicated development to obtain information necessary to determine the Embassy in which the Veteran's records may have been kept, as well as any development required under 38 C.F.R. § 3.311. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, the appellant should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until she is 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). As noted above, this case has been advanced on the Board's docket. It must also be afforded expeditious treatment by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).