ORDER
This matter is before the Court for resolution of a dispute as to the content of the record on appeal.
On February 25, 1992, appellant counter designated the record on appeal. On April 15, 1992, counsel for the Seсretary of Veterans Affairs (Secretary) notified the Court of a dispute between the parties concerning thе content of the record. On April 28, 1992, appellant moved that the Court order the Secretary to show cause why counter designated items 1, 4, 7, and 9 were not made part of the veteran's claims file. Appellant alleges thеse documents were generated by the Department of Veterans Affairs (VA) either in the revision of the deceаsed veteran’s death certificate or as part of the claims process. Appellant did not state whеther she personally proffered the records to the Board of Veterans’ Appeals (BVA or Board). Rathеr, she apparently believed the records should have been kept by the VA in the normal course of business.
On May 4, 1992, thе Court ordered the Secretary to advise whether the four disputed items were contained in the record of proceedings before the BVA and, if not, whether they were available to the BVA as part of any records maintained by the VA. On June 5, 1992, the Secretary responded to the Court’s order.
The Secretary states that, after re-reviewing thе claims file in the instant matter, the four disputed items were not found. In addition, the Secretary states that the claims file contains the only information relating to this appeal that was available to the BVA. This statement is supported by an affidavit from the Special Assistant for Litigation Support to the Chairman of the Board.
Here appellant hаs counter designated four items which may well be factually determinative of her claim. The four items are (1) a VA Form 119 Rеport of Contact, dated March 8, 1988, and completed by Dr. Robert A. Kreisberg, a VA physician and Chief of Medical Sеrvices; (2) a letter, dated October 3, 1988, from Dr. Joel D. Silver-berg, Chief Medical Resident and Instructor in Medicine, 1988-89, at the VA Mediсal Center in Birmingham, Alabama, to Mrs. Louise Graves of the Jefferson County Health Department; (3) a letter from the VA to аppellant informing her that the VA had received her application and that she did not have to take any additional action at that time; (4) appellant’s Statement in Support of Claim, dated May 2, 1991. Three of the four items were generated within the VA by its agents or employees.
This Court is precluded by statute from considering any material which wаs not contained in the record of proceedings before the Secretary and the Board. 38 U.S.C. § 7252(b) (formerly § 4052(b)); Rogozinski v. Derwinski,
Here, there has been no allegation by the Secretary that the items proffered by appellant are not genuine and we have no
The Court is not suggesting that appellant’s entire claim file must be submitted to the Court in this or any other case. Hоwever, the Secretary must insure, by whatever means necessary, that those items considered by the Board in arriving at its decision are included in the record on appeal. Where, as here, a dispute arises as to the cоntent of the record and where the documents proffered by the appellant are within the Secretary’s сontrol and could reasonably be expected to be a part of the record “before the Seсretary and the Board,” such documents are, in contemplation of law, before the Secretary and the Bоard and should be included in the record. If such material could be determinative of the claim and was not considеred by the Board, a remand for readjudication would be in order.
On consideration of the foregoing, it is
ORDERED that the August 5, 1991, BVA decision is vacated. The case is remanded for readjudication of appellant’s claim in light of the record as now constituted. “A remand is meant tо entail a critical examination of the justification for the decision.” Fletcher v. Derwinski,