Citation Nr: 0003067	
Decision Date: 02/08/00    Archive Date: 02/15/00

DOCKET NO.  95-20 040	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for the cause of the 
veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. E. Larkin, Associate Counsel




INTRODUCTION

The veteran served on active duty from June 1966 to September 
1968.  He died in August 1994.  

This matter was initially before the Board of Veterans' 
Appeals (Board) on appeal from a December 1994 rating action 
of the Pittsburgh, Pennsylvania Regional Office (RO) of the 
Department of Veterans Affairs (VA), which denied the 
appellant's claim of service connection for the cause of the 
veteran's death.

The Board remanded the claim in November 1998 and June 1999 
for additional development.  


REMAND

The appellant contends that service connection is warranted 
for the cause of the veteran's death.  She maintains that the 
veteran's cancer resulted from exposure to herbicides while 
serving in Vietnam.  

When the Board previously reviewed the appeal, it was noted 
that a "replacement" death certificate had been submitted 
which made a significant change in the recorded cause of the 
veteran's death.  The case was remanded in order to attempt 
to obtain statements from the physicians who completed the 
death certificates regarding the reasoning behind the cause 
of death listed on each.  To date, efforts of the RO in that 
regard have been unavailing.  

In the most recent remand, the Board noted that adjudication 
of the appellant's claim should include consideration of the 
holding of McCartt v. West, 12 Vet. App. 164 (1999).  In a 
June 1999 letter to the appellant, the RO requested that she 
submit information which would establish that the veteran was 
exposed to Agent Orange during service.  To date, there has 
been no response from the appellant. 

While the Board is aware that the case has been remanded 
twice previously and regrets any further delay in 
adjudication, another remand is necessary.  Service 
connection for the cause of the veteran's death is 
appropriate when, by the exercise of sound judgment without 
recourse to speculation, it is determined that a disability 
incurred in or aggravated in service caused or contributed 
substantially or materially to the veteran's death.  
38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999).  
Thus, it must first be determined whether the veteran's death 
was caused by a disability for which service connection had 
been granted.  In this case, service connection was not in 
effect for any disabilities at the time of the veteran's 
death. 

It must then be determined whether service connection can be 
granted for any of those disorders which did cause or 
contribute to the veteran's death.  While the record includes 
copies of two certificates of death noting the cause of 
death, the claims folder does not contain any service medical 
records.  Furthermore, there is no indication that the RO 
attempted to obtain those records.  Under the circumstances, 
it is the judgment of the Board that the veteran's service 
medical records be obtained prior to appellate consideration 
of the appellant's claim.  Jolley v. Derwinski, 1 Vet. 
App. 37 (1990).  

In view of the above, the case is REMANDED to the RO for the 
following actions:

1.  The RO should contact the National 
Personnel Records Center(NPRC) and obtain 
the veteran's service medical records.  
Any records received should be associated 
with the claims folder.  If the service 
medical records are unavailable, the NPRC 
should be asked to so state in writing, 
and its response should be associated 
with the claims folder.  

2.  Thereafter, the RO should again 
adjudicate the claim of service 
connection for the cause of the veteran's 
death.  If any benefit sought on appeal 
remains denied, the veteran and 
representative should be furnished a 
supplemental statement of the case and 
given the opportunity to respond thereto.

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.



		
	BARBARA B. COPELAND
	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).