Citation Nr: 1631389	
Decision Date: 08/05/16    Archive Date: 08/12/16

DOCKET NO.  13-30 933A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to Veterans' Retraining Assistance Program (VRAP) benefits from June 1, 2013 to October 13, 2013.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Air Force from February 1982 to August 1984. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA).  In May 2015, the Board remanded the appeal for additional development.  In November 2015, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In May 2015, the Board remanded the appeal because there was insufficient evidence of record to determine whether the Veteran actually attended Cortiva Institute on a "full-time basis" within the meaning of the controlling statute during the time period in question.  See 38 C.F.R. § 21.4270 (2015).  In this regard, the Board's May 2015 remand specifically directed the AOJ to contact a certifying official at Cortiva Institute to verify the Veteran's dates of attendance in the Professional Massage Therapy program, including his start date and completion date, and to identify any period the Cortiva Institute considered the Veteran to have been a full-time participant in its Professional Massage Therapy Program.

The above-requested development was not completed.  Instead, the December 2015 Supplemental Statement of the Case (SSOC) reflects that the AOJ contacted the "Education Liaison Representative (ELR)" in November 2015, as the "training facility cannot be considered reliable to provide accurate information."  Additionally the SSOC noted that later in November 2015 the ELR "confirmed the discrepancies found during the compliance review."  Neither a copy of the AOJ's November 2015 inquiry to the ELR, nor the reply from the ELR are of record.  Additionally, the AOJ did not comply with the specific directives of the Board to contact the Cortiva Institute.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders.  Where, as here, there has not been compliance with remand orders of the Board, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271   (1998).  This obligation is mandatory, not discretionary.  Therefore, another remand is required.  Id.  

Accordingly, the appeal is REMANDED to the AOJ for the following actions:

1.  Associate with the claims file the AOJ's November 16, 2015 inquiry to the ELR and the ELR's November 18, 2015 response.

2.  After obtaining any necessary release of information, contact the Veteran's certifying official at Cortiva Institute or if the certifying official is not available, another qualified Cortiva Institute official.  Ask the official to review the record of the Veteran's attendance at Cortiva Institute.  Request that the official answer the following questions:

A) What were the Veteran's dates of attendance in the Professional Massage Therapy program, including his start date, completion date, and number of clock hours per week?  

B) Does Cortiva Institute considers the Veteran to have been a full-time participant in its Professional Massage Therapy Program, and if so, for what time period(s)?

All correspondence to and from the Cortiva Institute must be associated with the claims file.

3.  Then readjudicate the claim.  If it remains denied, issue an appropriate SSOC and provide the Veteran the opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014).



_________________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).