Citation Nr: 18124005
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 09-47 653
DATE:	August 6, 2018
REMANDED
Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 1959 to November 1962.  The Veteran died in February 2008.  The Appellant is the Veteran’s surviving spouse. 
This matter comes before the Board of Veterans’ Appeals (Board) from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
In March 2013, the Appellant was afforded her requested Board hearing before the undersigned Veterans Law Judge (VLJ) at the local RO (Travel Board hearing).  A copy of the hearing transcript has been associated with the claims file.  
In May 2013, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development.  
In February 2016, the case was returned to the Board.  Upon reviewing the claims folder, the Board referred the claim to a specialist for an advisory medical opinion.  
In a decision in December 2016, the Board denied the claim currently on appeal.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In an Order, dated in December 2017, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the Joint Motion.
Following the most recent readjudication of this appeal by the RO in the April 2015 Supplemental Statement of the Case, additional pertinent evidence was added to the record.  However, the Appellant’s representative waived the Appellant’s right to have the RO initially consider this evidence in a statement dated in June 2018.  38 C.F.R. §§ 20.800, 20.1304.
1. Entitlement to DIC based on service connection for the cause of the Veteran's death is remanded.
The Veteran’s claims file does not appear to contain his complete service personnel records for his period of service.  The RO made a request to the National Personnel Records Center (NPRC) in October 2008 for “pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in actions, awards and decorations and official travel outside the U.S.”  In November 2008, NPRC mailed the requested records.  However, to date, a request for a complete copy of the Veteran’s personnel records has not been made.  As the personnel records may contain information regarding the Veteran’s report of in-service benzene exposure, a remand is required to obtain them.  If the personnel records confirm the Veteran’s in-service benzene exposure, then a VA addendum medical opinion must also be obtained upon remand.
Additionally, the RO found the Veteran’s service treatment records (STRs) to be unavailable in October 2009, after a December 2008 request to the NPRC, a January 2009 response that the records had been mailed, and a June 2009 email following up, because the RO had not received the records.  The Formal Finding of Unavailability notes that a July 2009 email response states that there are no additional STRs for the Veteran on file at NPRC, and “we regret that the documents appear to have been lost in the mail.”  The Appellant was informed about the unavailability of the Veteran’s STRs in a letter dated in October 2009.  However, as pointed out by her representative in a memorandum received in April 2018, the letter did not inform the Appellant of the alternate evidence that can be submitted when STRs are missing.  Upon remand, the Appellant must be provided with this requisite notice letter.
The matter is REMANDED for the following actions:
1. Obtain the Veteran’s complete service personnel records.
2. Send the Appellant a letter notifying her of the unavailability of the Veteran’s STRs and that she may submit alternate evidence in lieu of the STRs, to include lay statements from fellow service members, family members, and/or other relevant witnesses. 
3. If and only if the Veteran’s personnel records confirm his in-service benzene exposure, then obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran developed multiple myeloma due to his presumed benzene exposure during service.  The examiner must address the Web articles submitted and referenced by the Veteran’s representative in the May 2015 and January 2016 Informal Hearing Presentations (regarding a study that demonstrated that cigarette smoking does not cause multiple myeloma).
4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Appellant’s satisfaction, send the Appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.
 
BETHANY L. BUCK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shauna M. Watkins, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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