Citation Nr: 1751163 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-00 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for leukemia. 3. Entitlement to a higher initial rating for hearing loss evaluated as noncompensable from November 8, 2011 to November 25, 2013. 4. Entitlement to a higher initial rating for hearing loss evaluated as 50 percent disabling from November 26, 2013. 5. Entitlement to service connection for the cause of the Veteran's death. 6. Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318 (West 2014). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. He died in October 2015. The issues of entitlement to service connection for prostate cancer and leukemia as well as entitlement to an increased disability rating for hearing loss were previously dismissed in a February 2016 Board decision. The Appellant is the Veteran's widow, and she was subsequently acknowledged as the appropriate substitute. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted entitlement to service connection for a hearing loss and assigned a non-compensable rating. In a December 2013 rating decision the RO granted assigned a 10 percent rating for hearing loss effective November 8, 2011; and a 50 percent rating for that disorder effective November 26, 2013. In March 2016, the RO denied entitlement to service connection for cause of death, and entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318. These matters were previously before the Board, and, in May 2017, the Board remanded this matter for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND In May 2017, these matters were remanded for further development including associating additional treatment records with the claims file and providing the Appellant with a VA medical opinion. Unfortunately, this matter was returned to the Board, perhaps through an administrative error, before the AOJ had an adequate opportunity to undertake any of the ordered development. Therefore, this matter must be remanded in order to ensure compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center and the liaison offices for Army National Guard in an attempt to verify each and every period of active duty for training performed by the Veteran between April 1974 and March 1997. In this regard a report detailing the Appellant's award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty for training must be verified. If the dates of the Appellant's service cannot be determined otherwise, the AOJ must contact the Defense Finance and Accounting Service (DFAS) and request that they review the claimant's pay record to determine the dates and types of military service performed by the Appellant. That is, DFAS must determine for what service periods was the Veteran paid from an account designated to pay for active duty active duty for training, etc. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, using each of the verified dates of the Veteran's active duty for training, the AOJ must contact the Joint Services Records Research Center (JSRRC) and request that they review the unit records of Delta Company, 206th Engineering Battalion to determine when, if at all, the Veteran's unit served at Lexington Army Depot. If the JSRRC is able to confirm that the Veteran's unit served at Lexington Army Depot during a period when the Veteran was performing active duty for training, then JSRRC is to review all pertinent records which may confirm the Veteran's exposure to hazardous chemicals either at Lexington or any other facility. In this regard, the Veteran's DA Form 2-1 shows that his military occupational specialties in the National Guard were "excess armorer," demolition specialist, unit supply clerk, equipment records clerk, "Tamms" clerk, and armorer. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. If, and only if, it is determined that Veteran was exposed to hazardous chemicals while on active duty or active duty for training then the RO is to arrange for an oncologist to review all of the evidence of record to specifically include the Veteran's claims folder, VBMS file, and Virtual VA file. Following that review the oncologist must opine whether it is at least as likely as not (i.e., is there a 50/50 chance) that the Veteran's prostate cancer or leukemia was causally related to any verified in-service exposure to hazardous chemicals. The examiner must provide a fully explanatory rationale for any opinion expressed. 4. Contact the appellant to determine whether she desires a Board hearing. 5. After completing any other development that may be indicated, readjudicate the claims. If any benefit sought on appeal remains denied, the Appellant and any representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The Appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2017).