Citation Nr: 0000692 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-08 407A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the veteran's death was the result of his own willful misconduct. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and the veteran's father ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from January 1996 to June 1997. He died on June [redacted], 1997. The appellant is the custodian of the children of the deceased veteran. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1997 administrative decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for service connected death benefits and which determined that the veteran's death was due to his own misconduct. The appellant filed a timely notice of disagreement and perfected a substantive appeal. The appellant and the father of the veteran testified at a hearing held at the RO before a Hearing Officer in July 1998 and at a hearing before a Member of the Board sitting at the RO in August 1999. REMAND Under 38 U.S.C.A. § 5107(a) (West 1991), a claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim of entitlement to service connection is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well- grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a claim is not well grounded VA does not have a statutory duty to assist the claimant in the development of evidence pertinent to the claim. However, the VA has a duty to obtain records which are in the constructive possession of the VA, such as military records. Bell v. Derwinski, 2 Vet. App. 611, 612- 613 (1992). In this regard, of record is a Report of Investigation Line of Duty and Misconduct Status (DD Form 261), dated on August 25, 1997. This report indicates that a final line of duty determination had not been made due to the fact that the autopsy report had not been completed. As such, the Board finds that the final line of duty decision should be obtained. Accordingly, the case is Remanded for the following actions: 1. The appellant should be informed that she has the opportunity to submit additional evidence and arguments in support of her claim. 2. The RO should contact the appropriate sources in order to obtain the autopsy protocol report and the final line of duty determination. Thereafter, the case should be reviewed by the RO. If the benefits sought on appeal are not granted, the RO should issue the appellant her representative a supplemental statement of the case, and an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ROBERT P. REGAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).