Citation Nr: 1754188
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 02-07 796 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

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

REPRESENTATION

Appellant represented by: Daniel Krasnegor, Attorney

WITNESSES AT HEARING ON APPEAL

Appellant, H.G., and G.G.

ATTORNEY FOR THE BOARD

C. Ford, Associate Counsel

INTRODUCTION

The Veteran served active duty in the United States Army Reserve from August 1961 to February 1962, with additional periods of verified active duty for training (ADT) in July 1962, August 1963, and August 1964. The Veteran passed away in February 1998. The appellant is his surviving spouse.

This appeal arises before the Board of Veterans’ Appeals (Board) from a November 1998 rating decision in which the Department of Veteran Affairs (VA) Houston, Texas, Regional Office (RO) denied entitlement to service connection for cause of death. In August 2003, the Board remanded this matter for further development.

In October 2005, the Board issued a decision which denied the appellant’s claim. The appellant appealed to the United States Court of Appeals for Veteran Claims (Court). In a January 2008 Memorandum Decision, the Court vacated the Board’s decision and remanded for further action. In September 2008, the Board remanded this matter for further development.

In June 2009, the Board issued a decision which denied the appellant’s claim. In a January 2010 Joint Motion for Remand, the parties agreed to vacate the previous Board decision. The Board remanded this matter for further development in May 2011 and November 2012.

In May 2015, the Board issued a decision which denied the appellant’s claim. In an October 2016 Memorandum Decision, the Court vacated the Board’s decision and remanded for further action.

In February 2003, the Veteran testified before a Veterans Law Judge at a Travel Board hearing. A copy of the transcript has been associated with the claims file. This hearing was before a judge that is no longer available to adjudicate the claim. The appellant was sent a letter on notification of this matter. The appellant did not respond in the 30 day time period to request a new hearing. Therefore, the Board will proceed accordingly.

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

REMAND

Although the Board sincerely regrets the additional delay, further development is needed prior to disposition of the claim for entitlement to service connection for the Veteran’s cause of death.

The appellant contends that the Veteran’s death was due to his period of service. Specifically, the appellant asserts that, during service, the Veteran was exposed to ionizing radiation which resulted in colon cancer that caused the Veteran’s death. The area on which this issue turns is whether the Veteran was present at White Sands during his period of service.

In December 2011, the National Personnel Records Center (NPRC) reported that morning reports were not maintained for inactive reserve units, and that unit histories, lessons learned, etc. were not maintained at code 13.

In a November 2012 Board remand, the Board’s directives stated, “Contact the Veteran’s Reserve unit (867th Quartermaster Company in Fort Bliss, Texas) or other necessary repository to obtain his personnel and service treatment records for his ADT from July 1, 1962 to July 15, 1962, including, but not limited to, obtaining any and all unit histories, Operating Reports/ Lessons Learned, morning reports, muster reports, copies of orders, and pay records. Request further assistance from the service department or other relevant entities, if necessary.”

A July 2013 Report of General Information reported that a phone call was made to Fort Bliss records department. A representative provided a negative response for records from the unit and noted that the 867th Quartermaster Company has been dissolved. The report also stated that all records for inactive units are retired to NPRC.

In an October 2016 Court memorandum decision, the Court determined that VA had not met the duty to assist because VA did not attempt to contact the National Archives and Records Administration (NARA) or “any other repository” where the records were likely to be maintained. The Court explained that no repository has contended that the unit records do not exist, and it cannot determine who the proper custodian is because Fort Bliss claims that unit records were retired to the NPRC, whereas the NPRC states that morning reports were not maintained for the Veteran’s inactive Reserve unit and that other unit records were not maintained at Code 13. Although VA has made clear that NARA files are maintained by NPRC, the Court has instructed that NARA should be contacted, as a separate entity, to attempt to obtain additional files for the Veteran. Given the findings of the memorandum decision, the Board has no discretion and must remand.

Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate action to conduct additional search(es) for service personnel records of the Veteran not currently of record, to specifically include contacting NARA, as a separate entity from NPRC, to request the Veteran’s military personnel files, to include, but not limited to, obtaining any and all unit histories, Operating Reports/Lessons Learned, morning reports, muster reports, copies of orders, and pay records, if available.

If not available, contact any other necessary repository to obtain his personnel and service treatment records from July 1, 1962 to July 15, 1962, if available. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) as regards requesting records from Federal facilities.

All attempts to obtain these records should be documented in the claims file. If the search for these records is negative, such should be documented in the claims file, and the appellant must be informed of this in writing in accordance with 38 C.F.R. § 3.159 (e). Additionally, if records are unavailable, issue a finding of unavailability and clarification on the process of maintenance of such records from the 867th Quarter Master Company in Fort Bliss, Texas.

2. Readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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).

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