Citation Nr: 1815695 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-20 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Kerry Hubers, Counsel INTRODUCTION The Appellant is the surviving spouse of the Veteran who died in April 2012 and served his country honorably on active duty from February 1952 to March 1971. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision by the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota (hereinafter, "Agency of Original Jurisdiction" or "AOJ"). Jurisdiction of this matter has been transferred to the VA Regional Office (RO) in Oakland, California. The appellant testified at a Board hearing held at the RO in August 2017. The record contains a transcript of the hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The electronic claims file in this matter is incomplete and frustrates the Board's consideration of the merits of the appellant's claims at this time. In particular, several important documents are referenced in at least one of the October 2012 rating decision, the October 2012 Notification Letter, and/or the April 2014 statement of the case (SOC) but they are not located in the electronic claims file (including VBMS, Caseflow Reader, and the legacy content manager documents). The apparently missing documents include (1) the appellant's June 4, 2012 VA Form 21-534 Application for DIC, Death Pension, and Accrued Benefits, (2) the June 4, 2012 VA Form 21-530 Application for Burial Benefits, (3) a Letter from Zachary A. Gavriel received June 4, 2012, and (4) a VA Form 21-4138 Statement in Support of Claim received June 4, 2012. It is not clear why the electronic claims file does not include these documents which are referenced in official decisions and correspondence sent to the appellant. The "Letter from Zachary A. Gavriel, received June 4, 2012" which is referenced in the October 2012 Notification Letter informing the appellant of her denial might be particularly important because the record does contain a 2002 treatment record from Dr. Gavriel that was received by VA (after being resubmitted) on June 2, 2014. It is possible that Dr. Gavriel authored a 2012 letter that provides some medical support for the appellant's lay assertion that the Veteran's PTSD may have contributed to one or more of the conditions that ultimately caused the Veteran's death. It is also possible that the 2002 treatment record was erroneously referred to in the Notification letter as received June 4, 2012, although the actual date of receipt was transposed from June 2, 2014 (the date stamped on the treatment record) to June 4, 2012 (the date listed in the Notification). However, the Board has no evidence or indication to conclude that such an error was made rather than that a separate letter exists and was not included in the electronic claims file. The RO must search any available paper and electronic records to determine which of the above-referenced documents exist and ensure they are included in the electronic claims file to permit a full and fair review of this matter by the Board. Another of the missing documents is the initial August 3, 2012, VCAA notice letter. As the Veteran's representative pointed out at the hearing, without evidence indicating that an appropriate notice letter was sent (e.g., a copy of the letter in the electronic claims file), the Board cannot determine whether VA satisfied its duty to notify the appellant of her rights and the evidence needed to establish her claim. See August 2017 Board Hearing Tr. at 4-5. The matter must be remanded so that the Board has all information and evidence that, the record indicates, was available to the AOJ to make the initial determination. It would be helpful if the appellant or her representatives could provide a copy of any of the apparently missing documents. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a notice letter informing her of the elements of her claims and the evidence necessary to establish her claims. 2. Locate and upload to the electronic claims file all available claims, notice letters, statements from the appellant, and evidence that is not currently included in the electronic claims folder including, particularly: (1) the June 4, 2012 VA Form 21-534 Application for DIC, Death Pension, and Accrued Benefits, (2) the June 4, 2012 VA Form 21-530 Application for Burial Benefits, (3) the "Letter from Zachary A. Gavriel received June 4, 2012" referenced in the October 2012 notice letter, and (4) a VA Form 21-4138 Statement in Support of Claim received June 4, 2012. If any of these items are not located or do not exist, the RO must include documentation of efforts to locate the items in the electronic claims file, notify the appellant of their unavailability, and provide her an opportunity to submit copies of any those documents or any additional evidence that she possesses. 3. After completing any additional development deemed necessary, readjudicate the appellant's claims. 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 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).