Citation Nr: 21071757 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-39 799 DATE: December 1, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active service in the United States Navy from June 1932 to November 1958. The Veteran died in August 1984. The Appellant is the Veteran's spouse. In an October 2019 decision, the Board denied the Appellant's claim for entitlement to service connection for the Veteran's cause of death. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand (JMR), moving for vacatur of the October 2019 decision's denial of entitlement to service connection for cause of death and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). 1. Entitlement to service connection for cause of death is remanded. In June 2021, the Board remanded the Appellant's claim for further development, in accordance with the January 2021 JMR. To this end, the Board directed the RO to attempt to acquire VA treatment records identified by the Appellant, to include from the Orlando VA Outpatient Clinic. The directives of the last remand also noted affording the Appellant and her representative the appropriate time and opportunity to respond to any findings from such inquiry. After a thorough review of the subsequent development by the RO, the Board finds that such directive was not substantially accomplished by the RO, and that in turn, remand is required for the VA to fulfill its duty. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). The Board notes that while the RO did in fact inquire about VA treatment records from the Orlando and Tampa VAMC, such inquiry was restricted to only an eight-month period leading up to the date of the Veteran's death. The Board finds that such limited period of inquiry is overly restrictive and fails to substantially accomplish the breadth contemplated by either the Court's or Board's remands. Here, the evidence of record contains little to no medical treatment records regarding the Veteran, and the lay statements asserted by the Appellant has explicitly noted longterm treatment of the Veteran in both Orlando and Tampa, Florida for conditions in which the Veteran was receiving a total rating for unemployability (TDIU) since 1977. As such, the Board finds that restricting such inquiry for medical records to only a few months prior to the Veteran's death, renders such development inadequate, and remand is required. Furthermore, the Board also finds that the RO failed to provide timely notice and allocate appropriate time for the Appellant and/or her representative to respond to any findings by the RO. Here, the Board notes that after failing to acquire any VA medical record, the RO issued notice to the Appellant in a September 13, 2021, notice letter, informing the Appellant that the RO was unable to acquire any treatment record, and requesting additional information and evidence from the Appellant. Unfortunately, the RO also issued a Supplemental Statement of the Case (SSOC) the same day of September 13, 2021, and sent the claim back to the Board. Absolutely no time was given to the Appellant, nor her representative, to respond to submit additional evidence and argument to the findings of the RO's development, of there-in-lack-of. The Board finds that such disregard in affording the Appellant any opportunity to respond to the RO's notice contradicts not only Board's last remand directive but fly counter to the VA's duty to assist. Consequently, the Board must find that remand is again required, for the VA to fulfill its duty. The matters are REMANDED for the following action: Obtain all outstanding VA treatment records including but not limited to the Orlando VA Outpatient Clinic and associate them with the evidence of record before the Board. Such inquiry shall include at least a period of three (3) years prior to the Veteran's death. At least two (2) attempts to acquire such records should be attempted. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.