BVA9505834 DOCKET NO. 92-17 838 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for ankylosing spondylitis of the spine, for accrued benefits purposes. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a heart disability, for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 to November 1945, from August 1947 to August 1951 and from September 1951 to July 1972. The veteran died in April 1991. The appellant is his widow. This appeal arises from a September 1991 rating decision in which the RO denied service connection for the cause of the veteran's death. The RO also determined that no new and material evidence had been submitted to reopen the appellant's claims for entitlement to service connection for a heart disability and ankylosing spondylitis of the spine for accrued benefit purposes. The Board remanded the case in November 1993 for additional development of the evidence. REMAND The appellant contends that the RO erred by failing to grant the benefits sought on appeal. By decision dated in November 1993, the Board remanded this case to the RO to obtain additional evidence, including VA medical records and service medical records from 1962 to 1972. The October 1994 rating decision indicates that the RO reviewed Syracuse, N.Y., VA Medical Center hospital treatment records dated from 1983 to February 28, 1991. Those records are not contained in the claims folder. In addition, the veteran's death certificate indicates that the veteran was hospitalized within two month's prior to his death, but does not identify the facility or dates of hospitalization. The VA has a duty to assist the appellant in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The U.S. Court of Veterans Appeals (Court) has held that the duty to assist the appellant in obtaining and developing available facts and evidence to support her claim includes obtaining treatment records to which the appellant has referred. Littke v. Derwinski, 1 Vet.App. 90 (1990). The RO should take all appropriate steps to locate the missing VA records and associate them with the claims folder. The RO should ascertain from the appellant the identity of the hospital where the veteran was treated two months prior to his death and obtain those hospital records. The Board notes that in December 1985, the veteran stated that he received a diagnoses of heart block on discharge examination conducted by Captain Wagner, M.D. at K.I. Sawyer Air Force Base, Michigan. In addition, in November 1986, he indicated that his medical records, which were located at Randolph Air Force Base, reflected that he was discharged due to a heart disability in 1972. Most recently, in June 1994, National Personnel Records Center (NPRC) indicated that a search of their record produced no additional service medical records of the veteran. However, the RO has not requested that a search for the missing records be conducted at the individual facilities where the veteran received treatment. The RO should make additional requests for the veteran's service medical records. As indicated above, the veteran's service medical records are incomplete, through no fault of the veteran. The Court has held that where service medical records are unavailable, a heightened duty to assist includes the obligation to search for alternate methods of proving service connection. See Moore v. Derwinski, 1 Vet.App. 401 (1991).The Court has stated, "VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence." Smith v. Derwinski, 2 Vet.App. 147, 148 (1992). The RO should advise the appellant that she may present evidence to substitute for the absent service medical records. Finally, the VA has a duty to acknowledge and consider all regulations which are potentially applicable to the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Under the circumstances of this case, we find that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the appellant and advise her that she can submit alternate evidence to support her claims. She should be advised that this evidence may take the following forms and that she may submit any other evidence she finds appropriate: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom the veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records and insurance examinations. 2. The RO should contact the appellant and request her to furnish the names and addresses of all health care providers from whom the veteran received treatment for his disabilities from February 1991 to the date of his death, to include the name and address of the hospital or hospitals where the veteran was hospitalized within the two months prior to his death, as indicated on the death certificate. Where appropriate, consent forms for the release to the VA of any private medical records should be obtained from the appellant. Thereafter, the RO should obtain legible copies of all identified treatment records and associate them with the claims folder. 3. The RO should take all appropriate steps to locate the VA medical records dated from 1983 to 1991 which are referred to in the October 1994 rating decision and which are not contained in the veteran's claims folder. 4. The RO should request all available service medical records of the veteran from Randolph Air Force Base, Texas and K.I. Sawyer Air Force Base, Michigan. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete appropriate corrective action is to be implemented. When the above developments have been completed, the case should be reviewed by the RO. If the decision remains adverse to the appellant, she and her representative should be afforded a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. I.S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).