Citation Nr: 0906636 Decision Date: 02/23/09 Archive Date: 03/03/09 DOCKET NO. 04-23 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance under the provisions of Chapter 30, Title 38, United States Code. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from September 6, 1989 to May 18, 1992. This matter returns to the Board of Veterans' Appeals (Board) following a Remand issued in July 2007. This matter was originally on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the Veteran's claim for educational assistance under Chapter 30, Title 38, United States Code. It is noted that the Veteran's claim was previously denied by the Board in July 2005. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2007, the Veteran through his representative and the Secretary of Veterans Affairs (the parties) submitted a Joint Motion for Remand (Joint Motion) requesting that the Board's decision denying the Veteran's claim for Chapter 30 educational assistance benefits be vacated and remanded for further adjudication. In a January 2007 Order, the Court granted the motion and remanded the case to the Board for further appellate review. In July 2007, the Board remanded the issue on appeal for further evidentiary development. The case now returns to the Board following the Remand. Unfortunately, this appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for reasons explained below. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, the Board finds that this case must again be remanded for further development in order to ensure compliance with previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In July 2007, the Board remanded the issue on appeal. Pursuant to the January 2007 Joint Remand, the Board instructed the RO to perform the following actions: (1) request a memorandum from the Army, with citations to any relevant Army Regulations, Directives, Circulars, or other official or internal documents, explaining the differences between separation codes "KGF", "LCR", and "JCR", and the bases for assignment of each particular separation code; (2) obtain and consider the following Army Regulations: AR 140-111, AR 600-9, AR 601-280, AR 635-200; and Army Information Paper 9, TAPC-PDE-E1 (Sep. 1999); (3) obtain the Veteran's complete service personnel records, including all documents relating to his separation from service; and (4) readjudicate the claim. The record reflects that the RO requested (1) through (3) from the Army via an email dated on February 12, 2008. In response, the Veteran's DD Form 2366, DD Form 1966/1, DD Form 3286-60, and DD Form 214 were sent by email as an attachment later that day by an Army Representative (M.M.). The Army representative also explained that KGF was a bar to reenlistment and is a non-COG (Other) type of separation and separation codes of LCR and JCR were for weight control failure. She further explained that the Army Information Paper 9 was not an official Army information paper and was merely provided for desk-side use at Army Education Centers. The Veteran's claim was then readjudicated. The Board notes that the response by the Army representative is not deemed sufficient as it contains no citations to any relevant Army Regulations, Directives, Circulars, or other official or internal documents, explaining the differences between separation codes "KGF", "LCR", and "JCR", and the bases for assignment of each particular separation code. In the Joint Remand, the parties specifically found that the Board erred in its July 2005 decision by relying on an email from an Army representative wherein she similarly explained that the Veteran would not be eligible for educational benefits based on his separation code but cited to no authority in support of her position. Additionally, the Board observes that the Army Information Paper 9 has not been obtained. Although it is noted to be an internal document, it is not entirely clear why it could not be provided or is otherwise not relevant to the Veteran's claim. Furthermore, the Board observes that the Army Regulations cited under remand directive (2), except for AR 140-111, and the Veteran's complete service personnel records, including all documents relating to his separation from service, have not been obtained and there is no indication in the record that they are not available. Moreover, it does not appear that AR 140-111 has been considered. For these reasons, the Board finds that a remand is required. Accordingly, the case is REMANDED for the following actions: 1. Please request from the Army a memorandum, with citations to any relevant Army Regulations, Directives, Circulars, or other official or internal documents, explaining the differences between separations codes "KGF," "LCR", and "JCR," and the bases for the assignment of each particular separation code. 2. Please obtain and consider the following Army Regulations: AR 600-9, AR 601-280, AR 635-200, and Army Information Paper 9, TAPC-PDE-E1 (Sep. 1999). AR 140- 111, which is already of record, should also be considered. If any of the documents is unavailable, such should be stated for the record. 3. Please obtain the Veteran's complete service personnel records, including all documents relating to his separation from service, and associate them with the claims folder. If the records are unavailable, such should be stated for the record. 4. After any additional notification and/or development deemed necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain additional development and ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2008).