Citation Nr: 1613103 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-39 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a brain tumor, status post craniotomy. 2. Entitlement to service connection for a right leg disorder. 3. Entitlement to service connection for a right hand disorder, including carpal tunnel syndrome. REPRESENTATION The Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1981, with subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) in Roanoke, Virginia Regional Office (RO). REMAND In the June 2013 remand, the Board directed the RO to contact the appropriate service department agencies, to include the relevant Reserve agencies/units (in particular, Alpha Company, 2/319th, 7th BDE 80th DIV (IT)) to determine if there are outstanding service treatment records from 2001 onward. The Board also requested the RO to obtain records of medical examinations, including entrance and exit examinations. The Board also asked the RO to specifically clarify as to when the Veteran completed his service (ACDUTRA/INACDUTRA) with the Reserve. Additionally, the Board asked that the RO obtain all service personnel records for the Veteran, to include all records for Reserve component service. All responsive documents were to be associated with the claims file. Should no such records be available after an exhaustive search, the RO was to annotate the claims file to reflect such a fact. In an August 2013 letter, the RO requested from the U.S. Army Reserve Personnel Center the Veteran's physical examinations, including entrance and exit examinations; all service treatment records; any line of duty determinations; and verification of all periods of service, the status of that service (active duty, ACDUTRA, INACDUTRA), and the character of any periods of active duty. The August 2013 letter was date-stamped as returned to the RO in September 2013. Additionally, at the top of the returned letter is a hand-written note indicating that it was "returned mail." The RO did not issue another request letter to the U.S. Army Reserve Personnel Center. Additionally, in January 2014, the RO sent a letter to the 7th Brigade, 80th Division, also requesting the Veteran's physical examinations, including entrance and exit examinations; all service treatment records; any line of duty determinations; and verification of all periods of service, the status of that service (active duty, ACDUTRA, INACDUTRA), and the character of any periods of active duty. The RO did not receive a response from the 7th Brigade, 80th Division, to include a negative response indicating that such records were not in that repository's possession or were otherwise unobtainable. The RO did not send the 7th Brigade, 80th Division, another request letter. VA has a duty to obtain all relevant federal records unless they are unobtainable or further efforts would be futile. 38 C.F.R. § 3.159(c)(2) (2015). Based on the above, the Board finds that the RO did not substantially comply with the June 2013 remand directives. As such, a remand is required for corrective actions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is remanded for the following action: 1. The RO must attempt to obtain the Veteran's service treatment and personnel records that have not already been associated with the claims from the appropriate entity or entities, including, but not limited to, U.S. Army Reserve Personnel Center and 7th Brigade, 80th Division. Specifically, the RO must attempt to obtain any service records dated in and after 2001 that have not already been associated with the claims file. All attempts to obtain the Veteran's records must be documented and that documentation must be associated with the claims file. If no records are available from a given entity, the RO must obtain a negative response from that entity, and that negative response must be associated with the claims file. If, after making reasonable efforts to obtain the records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).