Citation Nr: 21072525
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 16-63 282
DATE: December 3, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from April 1953 to March 1958. He also served on active duty in the Army National Guard from November 1990 to July 1991, which includes service in the Southwest Asia theater of operations. The Veteran died and the appellant is his surviving spouse.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim of service connection for the cause of the Veteran's death.

In October 2019, the Board remanded the claim of service connection for the cause of the Veteran's death to afford the appellant a personal hearing with a Decision Review Officer (DRO), that was requested in December 2016 in conjunction with her substantive appeal (VA Form 9). An informal hearing conference with a DRO was conducted in November 2020 in lieu of a formal hearing and a report of that conference has been associated with the claims file.

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

The Veteran's death certificate indicates that he was being treated at the time of his death at Hospital San Cristobal. A remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records.

Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Caribbean Healthcare System and are dated to November 2014. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

The matter is REMANDED for the following action:

1. Ask the appellant to identify the location and name of any VA or private medical facility where the Veteran received treatment for cardiac disability and respiratory disability, to include the dates of any such treatment.

Ask the appellant to complete a VA Form 21-4142 for all records of the Veteran's treatment at Hospital San Cristobal and all records of his treatment for cardiac disability and respiratory disability from any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.

2. Obtain the Veteran's outstanding VA treatment records from the VA Caribbean Healthcare System for the period from November 2014 through December 2014; and all such relevant records from any other sufficiently identified VA facility.

 

 

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fairlie, Associate 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.