Citation Nr: 0002430	
Decision Date: 01/31/00    Archive Date: 02/02/00

DOCKET NO.  98-20 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Whether new and material evidence has been presented to 
reopen a claim of entitlement to service connection for the 
cause of the veteran's death.


REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs 
Commission


ATTORNEY FOR THE BOARD

William L. Pine, Counsel



REMAND

The veteran had active service from November 1945 to December 
1946.

In a November 1997 VA Tobacco Use Questionnaire, the 
appellant reported that the veteran was treated for breathing 
problems related to tobacco use at Houston VA Medical Center 
(VAMC) in the 1960s.  Such records are not in the claims 
file.  The Secretary has constructive notice of the records.  
Bell v. Derwinski, 2 Vet. App. 611 (1992).  The actual 
records should be obtained.

The RO considered the appellant's December 1987 application 
for death pension as also a claim for dependency and 
indemnity compensation (DIC), as required.  38 C.F.R. 
§ 3.152(b)(1) (1987).  The March 14, 1988, letter notifying 
the appellant of the award of death pension also stated, 
"The veteran's death was not related to service-connected 
disease or injury."  The letter included a notice of 
appellate rights and procedures.  The appellant did not 
appeal the determination that the cause of the veteran's 
death was not related to service.  The RO should consider 
whether new and material evidence has been presented to 
reopen the claim, and adjudicate the issue accordingly.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all available inpatient and 
outpatient medical records of the veteran 
from Houston VA Medical Center for the 
period 1960 through 1969 and associate 
any information obtained with the claims 
folder.  If such records are not 
available at the medical center, the 
medical center should be requested to 
obtain the records if they have been 
archived, or, if not archived, to notify 
the RO of the disposition of such 
records.  All appropriate measures should 
be undertaken to retrieve the records, 
and all efforts should be documented in 
the claims file.

2.  Readjudicate the appellant's claim 
for DIC benefits, including determination 
whether new and material evidence has 
been presented to reopen the claim in 
light of the VA letter to the appellant 
of March 14, 1988.  If the claim remains 
denied, provide the appellant and her 
representative a supplemental statement 
of the case and afford them an 
appropriate amount of time to respond.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if appropriate.  The appellant need take no 
further action until he is further informed.  The purpose of 
this REMAND is to obtain additional information and to afford 
due process.  No inference should be drawn regarding the 
final disposition of the claim because of this action.

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.


		
	J. SHERMAN ROBERTS
	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).