Citation Nr: 1743414 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 11-08 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for immune idiopathic thrombocytopenic purpura (ITP), status post splenectomy, to include for accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty service from September 1965 to September 1968; he died in May 2012. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in June 2015. This matter was originally on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Houston, Texas and St. Paul, Minnesota. An issue of entitlement to non-service connected burial benefits was before the Board at the time of the prior Remand. Entitlement to those benefits was established while the case was in Remand status. While a statement of the case was issued and a substantive appeal received subsequently, this appears to be a complete grant of this benefit, and the issue is no longer before the Board. While the case was in Remand status, a Board hearing was requested. In October 2016, the appellant testified at a Travel Board hearing at the San Antonio, Texas, Satellite Office. A transcript of that hearing is of record. At that time it was agreed that the issues on appeal were the ones listed on the title page. "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C.A. § 5121A. In lieu of a specific request to substitute, VA will interpret a claim for DIC (VA Form 21-534, "Application for DIC, Death Pension & Accrued Benefits by Spouse or Child") by an eligible person to include a request to substitute if a claim for periodic monetary benefits or an appeal of a decision with respect to such a claim was pending before the AOJ or the Board when the claimant died. The Veteran's surviving spouse has been substituted as the claimant. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. In June 2015, the Board remanded the case for additional development. Specifically, the Board directed that the appellant should be provided with the necessary authorization forms for the release of any treatment records not currently on file, to include private treatment records from Dr. Lyons from June 2003 until May 2012 and from Dr. Tula from December 1991 to May 2012. A deferred rating decision dated in July 2016 indicates that a review of MAP-D/VVA records shows that a letter with development to private examiners was sent on January 30, 2013. On February 28, 2013, the appellant requested that the records of Dr. Cesar DeLasCasas of Methodist Hospital be obtained; these records were received in April 2013. The deferred decision also notes that treatment records from Dr. Lyons were received on July 25, 2013. The evidence of record, however, indicates that a request for Dr. Lyons' records was sent on July 14, 2003, and that records were received from Dr. Lyons on July 25, 2003. The Board notes that it appears from the VA treatment records from Laredo Outpatient Clinic that until his death, the Veteran was still being treated by Dr. Tula as the notes indicate that the VA providers were receiving notes from Dr. Tula with information on the Veteran's chemotherapy. With respect to Dr. Lyon's records, in a Statement in Support of Claim received in August 2009, the Veteran reported that medical records from Dr. Lyons were also available at the Laredo Texas VA Outpatient Treatment Center. As the actions previously requested by the Board were not done, further development is required, following the Travel Board Hearing. Accordingly, the case is REMANDED for the following action: 1. The appellant should be provided with pre-filled authorization forms for the release of any private treatment records from Dr. Roger Lyons from June 2003 until May 2012 and from Dr. Cesar Tula from December 1991 to May 2012. These records, as well as all treatment records from should then be obtained and associated with the claims folder. The appellant should be advised that she may also submit any evidence or further argument relative to the claim at issue. All attempts to obtain records should be documented in the claims folder. 2. After any additional development deemed necessary by the AOJ is completed, the case should be reviewed on the basis of the additional evidence, to include the issues of entitlement to DIC based on service connection for the cause of the Veteran's death. If record obtained suggest additional development, such as obtaining a medical opinion is indicated, such development should be undertaken. If the benefit sought is not granted in full, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ MICHAEL D. LYON 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) (2016).