Citation Nr: 21072963 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-42 704 DATE: December 7, 2021 REMANDED Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served in the Philippine Commonwealth Army from December 8, 1941 to September 26, 1942, and from February 16, 1945 to February 9, 1946. He was a prisoner of war from April 10, 1942, to September 26, 1942. In 1995, he passed away. The appellant is his surviving spouse, and she seeks to reopen a previously denied claim for service connection for the cause of his death. Although she initially requested a Board of Veterans' Appeals (Board) hearing in this matter in her August 2016 formal appeal to the Board, she later withdrew this request in writing in September 2016. The earliest decision on this matter located in the claims file is a January 2007 rating decision denying the appellant's request to reopen a previously denied claim for service connection for the Veteran's cause of death. However, there is no record in the file of an original denial of the underlying claim or the evidence of record when it was originally denied. Indeed, there is nothing in the claims file dated prior to the appellant submitting a request to reopen the claim in September 2006. Since the Agency of Original Jurisdiction (AOJ) most recently denied reopening the claim in July 2013, the appellant submitted evidence that did not appear to have previously been uploaded into the claims file, including a document which appears to be part of the Veteran's service personnel records and a document which appears to be a claim for service connection for a heart condition filed by the Veteran with VA in 1994. The appellant's September 2006 claim to reopen a prior denial in this matter indicates that the claim was originally denied as early as 2001. Because the claims file appears to be missing many pertinent records, including anything filed by the Veteran or the appellant prior to September 2006, the Board is unable to determine whether evidence filed since the claim was most recently denied is "new" evidence. Further, lacking an explanation as to why the claim was originally denied, a decision as to whether any potentially new evidence is material would be speculative. Also, if the service personnel record submitted by the appellant was not reviewed by VA previously in relation to this claim, that fact could render the issue of new and material evidence having been received as moot. Importantly, the claims file does not contain any indication that the AOJ attempted to locate missing documents. Thus, it cannot determine at this time that such documents are unavailable. As such, the Board is unable to decide this appeal until the AOJ has located and associated all missing documents, should they exist, with the claims file. Accordingly, the matter is REMANDED for the following action: 1. Locate the Veteran's entire claims file, to include specifically all documents dated prior to September 2006, including, but not limited to, the original VA decision denying service connection for the cause of his death and evidence reviewed in deciding that issue, as well as any claims filed by the Veteran prior to his death and associated documents (i.e., medical records, lay statements, VA decisions, etc.). 2. If the AOJ is unable to locate any portions of the Veteran's claims file, the AOJ should attempt to obtain copies of any of those documents and/or any other evidence that the appellant may have in her possession. 3. If the AOJ concludes that it is unable to locate the rest of the Veteran's claims file (or that the complete claims file prior to September 2006 has been lost), such should be noted in the claims file and the appellant should be so notified of this fact. The AOJ should then implement all necessary procedures for reconstructing the Veteran's claims file, to include thoroughly documenting the entire reconstruction process. No action is required of the appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The appellant also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.