Citation Nr: 0003158 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-05 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to accrued benefits under 38 U.S.C.A. § 5121, based on the veteran's disability claim for entitlement to compensation under 38 U.S.C.A. § 1151, for treatment received at the VA medical center in Tuskegee, Alabama, from May 1991 to January 1992, which was pending at the time of his death on May 1, 1997. 2. Entitlement to service connection for the cause of the veteran's death, to include eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and appellant's sister ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from October 1973 to August 1976 and from September 1976 to August 1980. The veteran died on May 1, 1997, and the appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in March 1996, in which the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) denied the a claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for overdose of medication and lack of oxygen to the veteran claimed as the result of treatment by the VA from May 1991 to January 1992. An appeal of this decision was subsequently perfected. Upon the death of the veteran, the appellant pursued this claim on an accrued basis. Additionally, the appellant submitted a claim of entitlement to service connection for the cause of the veterans death, to include entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. This claim was denied in a March 1998 decision and the appellant perfected an appeal of this decision as well. A video conference hearing on this claim was held on July 28, 1999, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). REMAND After a review of the record, it is the opinion of the Board that additional development of the evidence should be accomplished prior to further consideration of the appellant's claims. Initially, the Board notes that documents in the claims file refer to approximately 30 volumes of medical records pertaining to the veteran's inpatient treatment at the VA medical facility in Tuskegee, Alabama, from May 1991 to May 1997. The RO apparently reviewed these records, but they were not associated with the claims file when it was forwarded to the Board for evaluation. Because these records are part of the VA system and have been reviewed by the RO the Board finds that the VA has constructive possession of them and they should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the appellant has identified other specific evidence which is probative as to these claims and has not been associated with the claims file. She has stated that the veteran was treated at two private medical facilities prior to his admission to the VA medical facility in May 1991. Because the veteran's treatment and condition prior to entering the VA medical system is probative as to the appellant's claims, attempts to obtain these records should also be made. She also states that while at the VA hospital in September 1991 the veteran was noted to have been overdosed on Lithium and that VA medical personnel contacted the Alabama Poison Control Center for assistance. The appellant and her representative have averred that the tape recording of this conversation may be probative as to her claim. Accordingly, the RO should contact the appellant and request that she clarify the timeframe of this phone call and attempt to obtain a copy for the record. 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). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, the case is simply not ready for appellate review. To ensure due process, the case is REMANDED to the RO for the following development: 1. The RO should notify the appellant that if she has any additional lay or medical evidence she wishes to submit to support her claims she may do so, particularly evidence she may have obtained which may not currently be in the claims file. 2. The RO should ask her for a specific timeframe for the phone call to the Alabama Poison Control Center regarding the veteran's overdose of Lithium and request that she attempt to obtain a transcript or tape recording of the phone conversation from the Alabama Poison Control Center. 3. The RO should also request that the appellant provide authorizations for the release of private treatment records pertaining to the veteran from Humana Hospital, Fort Walton Beach, Florida, and Shands Hospital at the University of Florida, for the period from February 1991 to May 1991. Upon receipt of these authorizations, the RO should contact these facilities and request that they forward copies of the veteran's treatment records, lab reports, test results and other treatment notations. All received records should be associated with the claims file. 4. The RO should also secure copies of all VA treatment records pertaining to the veteran from the VA medical facility in Tuskegee, Alabama, from May 1991 to May 1997, to include lab results, test results, and daily treatment notations. If necessary these records should be retrieved from archived storage. Upon receipt, these records should be associated with the claims file. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and consider all the additional evidence. If any benefit sought, for which an appeal has been perfected, remains denied, the appellant and her representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto with additional argument and/or evidence. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until notified. 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. JEFF MARTIN 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).