Citation Nr: 1828331	
Decision Date: 05/07/18    Archive Date: 05/18/18

DOCKET NO.  12-17 503	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center 
in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Meawad, Counsel



INTRODUCTION

The Veteran served on active duty from June 1943 to April 1946.  The Veteran died in October 2007; the Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Pension Management Center (RO) in Milwaukee, Wisconsin.

In May 2017, the Board remanded the case for further development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In an August 2011 VA Memorandum, the RO stated that the Veteran's post-service VA treatment records are not available.  See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

In the September 2011 rating decision on appeal, the RO stated that the Veteran received private treatment from Dr. J.R.R. from 1997 to 2006.  Additionally, the Veteran's wife stated in a letter dated April 2011 that the Veteran had been admitted to a private hospital in Florence, Alabama.  However, the claim file does not contain those treatment records and there is no indication these records have been requested.  In light of the heightened obligation to assist in the development of this case, the Board finds that a request for the Veteran's private medical records should be made.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The RO must contact the appellant and afford her the opportunity to identify or submit any additional pertinent evidence in support of the issue on appeal, to include lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of the Veteran's cause of death.   

Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.  

The RO must specifically attempt to procure any medical treatment records from the Veteran's private physician, Dr. J.R.R., who provided the April 2011 letter, and from the Eliza Coffee Memorial Hospital where the Veteran received inpatient treatment according to his wife.  

All attempts to secure this evidence must be documented in the claim file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.  

2.  If additional medical records are obtained, obtain another opinion from a VA examiner.

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures.  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. §§ 5109B, 7112 (2012).




______________________________________________
E.I. VELEZ
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).