Citation Nr: 21069119 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-00 718 DATE: November 17, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to death and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. Entitlement to aid and attendance, on the basis of increased DIC, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1953 to May 1955. He passed away in January 1992, and the Appellant is his surviving spouse. These matters came before the Board in April 2019, whereupon all three claims were denied. Following the appeal, the United States Court of Appeals for Veterans Claims (Court) in October 2019 issued a Joint Motion for Remand (JMR) vacating all three denials and remanding the three issues back to the Board for action consistent with the Court's directives. Upon receipt of the case from the Court, the Board in April 2020 further remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development as directed by the Court in October 2019 JMR. Following the AOJ's attempts to carry out that development and the issuance of a September 2021 supplemental statement of the case that continued the denial of all three claims, the case was returned to the Board for its adjudication. 1. Entitlement to service connection for the Veteran's cause of death is remanded. 2. Entitlement to death and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. 3. Entitlement to aid and attendance is remanded. In furtherance of the Court's directives in the October 2019 JMR, the Board in the April 2020 decision instructed the AOJ to provide notice to the Appellant to attempt to secure additional alternative sources of evidence in support of her three separate claims of dependency and indemnity compensation, in light of the fact that a large portion of the Veteran's service treatment records are not available for review. Specifically, the Board requested that the AOJ send the Appellant a notice letter informing her of her right to submit alternative sources of evidence in place of missing service treatment records. After providing her with an opportunity to respond, and regardless of whether she did indeed respond with any additional alternative evidence, the AOJ was then instructed to contact certain military records repositories, to particularly include the National Personnel Records Center (NPRC) and the Joint Services Records Research Center (JSRRC), and attempt to obtain the Veteran's missing service treatment records. The AOJ was directed to ensure that any attempts made by any records repository engaged in this manner be documented for the record, and that a full explanation be provided to account for the unavailability of any potentially positive supporting records. Upon receipt of the remand directives, the AOJ in May 2020 sent the Appellant correspondence indicating that she could submit additional alternative evidence in support of her claims, to include buddy statements and other potentially supportive evidence not previously in VA's possession. In a reply correspondence dated in May 2020, the Appellant stated that she did not possess a copy of the Veteran's service treatment or personnel records, and that she did not have any further records to submit in support of the claims. In a separate correspondence dated in April 2020, the Appellant's representative also raised the theory that the Veteran was potentially exposure to hazardous materials while stationed at Fort McClellan, Alabama. Thereafter, an internal memorandum dated in July 2021 indicates that the AOJ submitted a Personal Information Exchange System (PIES) C01-V request for the Veteran's service records, and no new records were obtained through this request. Apparently, the responding records repository already provided all available records in September 2016. A separate internal memorandum dated in July 2021 indicates that a records repository entitled the Military Records Research Center (MRRC) was informed of the alternative theory raised by the Appellant's representative regarding the Veteran's purported hazardous exposure while stationed at Fort McClellan. The memorandum reflects that the MRRC could not engage in any research in support of the AOJ's request, as it was not provided with the circumstances of the Veteran's purported exposure. In a subsequent memorandum dated in August 2021, the AOJ added the additional detail that the Veteran's cause of death was myocardial infarction. However, the MRRC similarly replied that it still could not engage in any research as it was not provided with the circumstances of the Veteran's purported exposure. The Board finds that VA has not satisfied its duty to assist the Appellant in substantiating her claim. Specifically, when the MRRC in the first memorandum dated in July 2021 requested that the AOJ provide details regarding the circumstances of the Veteran's purported exposure to hazardous materials while stationed at Fort McClellan, the Appellant should have been notified of the negative response from the MRRC and given an opportunity to set forth additional evidence in support of her contention that the Veteran's death was attributable to in-service exposures. Instead, the AOJ went forward with a second request to the MRRC that was also deficient, and then issued the September 2021 supplemental statement of the case continuing the denial of all three claims. Remand is therefore necessary to provide notice to the Appellant regarding the MRRC's request for additional evidence as to the circumstances of the Veteran's exposure to hazardous materials while stationed at Fort McClellan. Furthermore, the Board notes that the AOJ neglected to pursue any further development of the separate theory that the Veteran was exposed to toxic herbicide agents in service that contributed to his development of the myocardial infarction that ultimately led to his demise. The Board directed the AOJ to contact appropriate record repositories in support of the contention that the Veteran was exposed to toxic herbicides in service, and there is no indication that any such records repositories were contacted in support of the Appellant's assertions regarding this particular theory. As such, remand is also necessary in order to pursue the development that the Board previously directed the AOJ to engage in to support the Appellant's claims. Those directives are copied in large part below. The matters are REMANDED for the following action: 1. Send the Appellant a notice letter notifying her that she can submit alternative sources in place of the missing service treatment and personnel records. Advise her that alternate evidence includes, but it not limited to, any military records; statements from service medical personnel; "buddy" certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian or private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; insurance examinations reports; and anything that may support the assertion of herbicide agent exposure and/or exposure to hazardous materials at Fort McClellan. To that end, the Appellant must also be advised that she should detail the circumstances of the Veteran's purported exposure to hazardous materials at Fort McClellan, to include any information regarding the Veteran's duties while stationed at Fort McClellan and the likelihood that those duties would result in potential exposure to hazardous materials. 2. Contact the National Personnel Records Center (NPRC), Military Records Research Center, or any other appropriate facility and attempt to obtain the Veteran's missing service treatment records. Furthermore, those same repositories should be contacted in order to attempt to verify the Veteran's claimed exposure to toxic herbicide agents and/or his purported exposure to hazardous materials while in service at Fort McClellan. In carrying out these instructions, the AOJ must ensure that it complies with current M21-1 provision regarding the substantiation of claims of in-service exposures to hazardous materials. If unsuccessful, the reporting agency should acknowledge that the records sought do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of the records must be verified and should be documented for the record. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.