Citation Nr: 1801308 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-29 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to November 1963 and from February 1964 to November 1969. He died in February 2011, and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. The claims file also previously was under the jurisdiction of the Louisville, Kentucky Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge during a March 2017 video conference hearing. A transcript of that proceeding is associated with the claims file. In February 2014, the Board remanded this case to the RO to schedule a video conference hearing. It has now returned to the Board for appellate review. A video conference hearing was held in March 2017, as noted above. Thus, the RO substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets the delay, a remand is required to resolve outstanding issues regarding documents that are missing from the claims file. Upon receipt of the claims file from the RO, the Board noted multiple missing documents, including key procedural and evidentiary records. The Veteran had been rated as permanently and totally disabled since 1998. However, there are very few documents located in the VBMS/Virtual VA e-folder, none of which are dated prior to 2004. This clearly indicates that a paper folder existed for a minimum of 6 years prior to 2004. The Board internally attempted to obtain the missing documents from the St. Petersburg, Florida, Milwaukee, Wisconsin, and Louisville, Kentucky ROs. Although those efforts resulted in the uploads of some missing documents into the electronic claims file, the ROs still were not able to locate many other missing documents, including: * August 2013 statement of the case (SOC) (regarding issue on appeal); * Appellant's October 2013 substantive appeal (regarding issue on appeal); * All documents referenced in October 2010 rating decision, including Lexington VA Medical Center records; * Various documents referenced in the August 2011 rating decision (regarding issue on appeal), including: o VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child, received on March 23, 2011; o VA Form 21-4138 (statement) dated March 23, 2011; o Veteran's service treatment records for the periods of service from September 1960 through November 1969; * Various documents referenced in the August 2012 rating decision (rating decision on appeal), including: o letter to Appellant from the National Personnel Records Center (NPRC) dated May 9, 2012 and received on June 18, 2012; o Service personnel records for the Veteran's periods of service of September 1960 through November 1969, received on June 18, 2012; * December 2013 VA Form 8; This may not be an exhaustive list of all documents currently missing from the claims file because the full extent of this issue is unknown at this time. For example, because the August 2013 SOC is currently missing, the Board is not able to determine whether additional, relevant evidence referenced in that SOC also is missing. Although the Veterans Appeals Control and Locator System (VACOLS) does not currently note the existence of a paper claims folder, the Board's 2014 remand indicated and RO representatives confirmed that the claims file included a paper folder at some point in the past. The Board's internal attempts to obtain the missing documents from the St. Petersburg, Milwaukee, and Louisville ROs yielded negative responses summarized below. In a November 2017 internal e-mail, St. Petersburg RO representative T.T. confirmed that multiple procedural and evidentiary documents relevant to the appealed issue were not of record in the e-folder. In a December 2017 internal e-mail, Louisville RO representative D.J.D. informed the Board that this RO was in the process of requesting missing records from storage locations to determine if any were a match. Moreover, D.J.D. informed the Board that this RO had implemented unspecified lost folder procedures. In a December 2017 internal e-mail, Milwaukee RO representative D.A.H. provided a negative response to the Board's inquiry regarding the missing documents. As the Milwaukee, Louisville, and St. Petersburg RO representatives all indicated in their respective, internal e-mails to the Board that there is no record of the claims folder (or any documents) ever having been sent to or received by VA's scanning vendor, it is still unknown where these missing documents are located. Accordingly, the Board finds that a remand is required for the ROs noted above to continue their respective attempts to locate the missing records (including the Louisville RO's pending search in storage locations). Also, the RO must notify the Appellant and her representative about this matter and afford her the opportunity to submit all relevant, missing documents that she may have in her possession. Accordingly, the case is REMANDED for the following action: 1. Promptly notify the Appellant and her representative regarding the matter discussed above, and afford the Appellant an opportunity to submit all missing claims file documents relevant to the appealed issue that she may have in her possession. Document all such communications with the Appellant and her representative. 2. Associate with the claims file all communications regarding the Louisville, Milwaukee, and St. Petersburg ROs' respective efforts to locate and obtain the missing claims file documents. 3. Continue to conduct appropriate lost file procedures and efforts to locate all missing claims file documents noted above, and any other missing documents relevant to the appealed issue. Such efforts should include requesting records from storage locations, if applicable. Document all such efforts and associate them with the claims file, including any negative responses or results, from all ROs involved in this search, including the Louisville, Milwaukee, and St. Petersburg ROs. 4. Then, if any claims file documents remain missing after completing the steps above, take all appropriate steps to attempt to replace them, including but not limited to requesting service medical records and service personnel records through official channels and requesting VA outpatient treatment records, if appropriate. Document all such efforts and associate them with the claims file, including any negative responses. 5. After completing the above and any other development deemed necessary, readjudicate the claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHELLE L. KANE 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).