Citation Nr: 1329146 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 04-09 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran reportedly had active service from May 1985 to August 1994. This matter is before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Education Center at the Atlanta, Georgia Regional Office (RO). In his February 2004 VA Form 9, the Veteran requested a hearing, which was scheduled for June 2006. However, the Veteran failed to report for the scheduled hearing, and his hearing request is thus deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The appeal was remanded for additional development of the record in May 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the May 2012 remand, the Board noted that the record was not sufficient to make a determination as to whether the Veteran satisfied the requirements for Chapter 30 educational assistance. It indicated that a DD Form 2366 was not of record, and that a DD Form 214 was also absent from the education folder. The Board directed that attempts be made to obtain the Veteran's service personnel records and pay records. Subsequent to the May 2012 remand, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case in September 2012. Under "adjudicative actions" the AOJ indicated that it had developed with the Department of Defense (DoD) in September 2012 to verify a DD Form 2366 and proof of a $1200 payment. It noted that it received a response from DoD the following day which indicated that the Veteran's record had been archived, so that the responder could not verify the 2366. This individual also reportedly indicated that the Veteran entered active duty prior to the MGIB implementation date and might be eligible for the Post-Vietnam Era Veterans Educational Assistance Program (VEAP). The individual indicated that they could not find proof of a $1200 MGIB contribution. Notably, this communication is not contained within the education file. Following issuance of the September 2012 statement of the case, the AOJ contacted the service department in May 2013 though the Defense Personnel Records Information Retrieval System (DPRIS) and requested the Veteran's service personnel records. The service department responded that the Veteran's social security number was not found in the automated repository system. The response indicated that the requestor should verify the social security number, branch of service, and that the claimed military service was completed after implementation of electronic OMPF records systems (i.e., calendar year 2000). It further advised that a new request should be submitted, or that the service repository action office be contacted for assistance. As stated above, the Veteran's service was apparently from May 1985 to August 1994, predating calendar year 2000. It does not appear that any further action was implemented. Because the possibility does exist that the Veteran's personnel records have been archived, or are otherwise available through the National Personnel Records Center, an additional attempt should be made to obtain them. The Board further notes that it does not appear that any attempt was made to secure the Veteran's pay records, as was directed by the May 2012 remand. Pay records should be sought through the appropriate authority (i.e., Defense Finance and Accounting Service). Finally, the Board observes that a Virtual VA (VVA) e-file exists for this Veteran. That VVA file contains various rating decisions. It is possible that pertinent service records, to include a DD Form 214 and other personnel records, are contained in any existing disability claims file. This file should be associated with the education file prior to further adjudication of this appeal. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the education file the Veteran's VA disability claims file. 2. Contact the appropriate federal records depository and request the Veteran's complete service personnel records, including a DD Form 2366. If the records have been archived, a search for the archived records must be requested. 3. Contact the service department or DFAS, as appropriate, and request the Veteran's pay records for August 1994. 4. All attempts to fulfill the above development should be documented in the education file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Ensure that the above development has been completed in accordance with the above directives. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran should be furnished with a supplemental statement of the case and be afforded an appropriate period in which to respond. The appellant 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. 2012). _________________________________________________ S. S. TOTH 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) (2012).