BVA9507182 DOCKET NO. 91-21 717 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Basic eligibility for death pension benefits. REPRESENTATION Appellant represented by: H. Russell Vick, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The former service member had active service from July 1967 to November 1970. This matter came to the Board of Veteran's Appeals (Board) on appeal from an August 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a July 1992 decision, the Board denied basic eligibility for nonservice-connected death pension benefits, and the appellant, the service member's widow, appealed to the United States Court of Veterans Appeals (Court). In a December 1994 Memorandum Decision, the Court affirmed in part the Board's July 1992 decision; the Board's decision was also vacated and remanded in part for further proceedings. [citation redacted]. REMAND In its July 1992 decision, the Board denied eligibility for death pension benefits on the basis that the deceased service member's discharge from service was under other than honorable conditions and, thus, barred payment of veterans' benefits because he was not insane at the time of the commission of the acts causing discharge. The Court has directed the Board to seek to obtain all relevant service medical records. In particular, the Court noted that on a DD Form 293, Application for Review of Discharge or Separation from the Armed Forces of the United Sates, dated January 21, 1972, the service member indicated that he was treated for a "mental-nervous condition" at Un Kai, Vietnam, during the spring of 1970. The Court also noted that prior to discharge, the service member executed an affidavit waiving the right to continuing medical treatment as part of a form intended for use by enlisted persons whose service was to expire during the receipt of medical treatment or course of hospitalization. The record includes no service medical records other than the veteran's pre-induction physical examination report, the report of a September 1970 physical examination and a September 1970 psychiatric consultation report. The latter two examinations were conducted at the Womack Army Hospital Specialized Treatment Center, Fort Bragg, North Carolina, where the veteran was assigned to the medical holding company beginning 30 July 1970. The RO should make further efforts to obtain additional service medical records that may be available, particularly any concerning psychiatric complaints or treatment at any time during service, and those efforts should be documented fully. See Littke v. Derwinski, 1 Vet.App. 90, 92 (1990); Murincsak v. Derwinski, 2 Vet.App. 363, 373 (1992). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should attempt to obtain and associate with the claims file the service member's complete service medical records, including, but not limited to, treatment or evaluation records while he was assigned to Hq & Co A, 4th Med Bn, 4th Inf Div from 19 February 1970 to 18 July 1970, and while he was assigned to the Medical Holding Co, Womack Army Hospital , Specialized Treatment Center (3155-01), Fort Bragg, North Carolina, from 30 July 1970 to 20 November 1970. All leads should be followed to their logical conclusion, and all efforts to obtain the complete service medical records should be documented fully. 2. The RO should contact the appellant, through her attorney, and provide her the opportunity to submit any additional evidence or argument she believes will support her claim. 3. Thereafter, the RO should determine whether insanity was demonstrated in service, and, if so, whether it contributed to the offenses committed by the service member which led to his other than honorable discharge from service. Based on its determinations, the RO should readjudicate the issue of basic eligibility for death pension benefits. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO should issue a Supplemental Statement of the Case, and the appellant and her attorney should be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. No action is required of the appellant until she is otherwise notified by the RO through her attorney. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).