Citation Nr: 1801921 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-40 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Coogan, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to September 1966. He died in February 1997. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In July 2014, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of this hearing is of record. In a November 2014 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In April 2015, the Secretary of Veterans' Affairs (Secretary) filed a Unilateral Motion (Motion) for Remand pursuant to U.S. Court of Appeals for Veterans Claims (Court) Rule 27. In June 2015, the Court granted the Secretary's Motion. In so doing, the Court vacated the November 2014 decision denying entitlement to service connection for the cause of the Veteran's death and remanded the case to the Board for action consistent with the Motion. In a September 2015 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant appealed that denial to the Court. By Memorandum Decision dated in April 2017, the Court vacated the Board's September 2015 decision and remanded the matter for further development and readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on this issue on appeal. As noted, in its April 2017 memorandum decision, the Court concluded that the Board erred in determining that the duty to assist did not require VA to obtain the Veteran's Social Security (SSA) medical records, as SSA had found that the Veteran had a mental disability related to his service, and thus any SSA medical records that led to this finding were relevant. Therefore, the Board finds that a remand is necessary, in accordance with the Court's instructions, in order to attempt to obtain the Veteran's outstanding SSA records. In addition, the Board notes that it is unclear whether the appellant's most recent Freedom of Information Act (FOIA) request has been fulfilled. The appellant's attorney made a request for the entire claim file in letters received in June 2015 and July 2015, with the later letter noting that it was the second request. As it appears there may be an outstanding FOIA request, clarification is required on remand and any outstanding FOIA request must be fulfilled. Accordingly, the case is REMANDED for the following actions: 1. Clarify with the appellant and her attorney whether there is an outstanding request for a copy of the Veteran's claim file, or any other evidence of record. If an affirmative response is received, provide the requested copy of the claim file or any other evidence of record, in compliance with FOIA. 2. Attempt to obtain and associate with the claim file all SSA determinations and all medical records used by SSA to make any determination. All attempts to obtain these records should be documented in the claim file. If such records cannot be obtained or if no such records exist, the RO must issue a formal finding and notify the appellant. 3. After ensuring compliance with the above, and any additional development (to include obtaining a VA medical opinion if deemed warranted), readjudicate the claim. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).