Citation Nr: 1633648 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 14-27 820 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to a certificate of eligibility for VA home loan guaranty benefits. ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran's DD Form 214 reflects that he served on active duty from April 4, 1996, to December 16, 1996, and that he had an additional one month and seven days of prior inactive service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 decision of the Department of Veterans Affairs (VA) Regional Office's (RO's) home loan eligibility center in Atlanta, Georgia, wherein the Veteran was denied a certificate of eligibility for VA home loan guaranty benefits because it was determined that he did not serve the minimum time required for this benefit. In order to be eligible for certain VA benefits, to include home loan guaranty benefits, a service member must generally perform a "minimum duty" requirement; either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. 38 U.S.C.A. § 5303A(b)(1) (West 2014). This statute provides that notwithstanding any other provision of law, any requirement for eligibility for or entitlement to any VA that is based on the length of active duty served by a person who initially enters such service after September 7, 1980, is governed exclusively by the eligibility requirements set forth in the law. There are situations in which the basic eligibility requirements for VA benefits as set forth under 38 U.S.C.A. § 5303A do not apply. One of those situations relates to home loan benefits. Specifically, 38 U.S.C.A. § 5303A(F) provides that the 24 month requirement does not apply to benefits under chapter 37, but only if those benefits are implicated "by reason of" certain factors. 38 U.S.C.A. § 5303A(b)(3)(F). Those factors are discharge or release for the convenience of the government, discharge or release for a medical condition that preexisted service and is not service connected, involuntary discharge or release for the convenience of the government based on reduction in force, and discharge or release for a physical or mental condition not characterized as a disability that interfered with performance of duty. 38 U.S.C.A. § 5303A(b)(3)(F)(i-iv). The 24-month requirement also does not apply "to a person who has a disability that the Secretary has determined to be compensable under chapter 11 of this title." 38 U.S.C.A. § 5303A(b)(3)(C). In the instant case, the Veteran's DD Form 214 reflects that served on active duty from April 4, 1996, to December 16, 1996. The Board notes that the agency of original jurisdiction (AOJ) has stated that the Veteran served in the Army Reserve from February 27, 1996, to December 16, 1996, and/or from February 27, 1996, to December 31, 1996. As noted above, the Veteran's DD Form 214 also indicates that he had an additional one month and seven days of inactive service prior to his period of active duty. The dates of the Veteran's inactive duty service have not been provided, but the Board will assume that the date of February 27, 1996, corresponds with the Veteran's start of inactive duty service. The Veteran's DD Form 214 also indicates that his character of service was honorable and that his reason for discharge was "unsatisfactory performance." The Board notes that only evidence before it consists of the Veteran's DD Form 214 and the adjudicatory documents related the Veteran's claim and appeal. In light of the stated reasons for discharge on his DD Form 214, the Board finds that before it can proceed to decide the merits of the claim before it, remand is necessary to ensure that adjudication of the Veteran's claims is based on a full and complete record. In particular, the Board finds it necessary to obtain the Veteran's service treatment and personnel records in order to ascertain the circumstances surrounding his discharge to determine whether his discharge qualifies as an exception to the 24-month requirement. Further, disagreeing with the denial of his claim, the Veteran stated that he receives medical benefits from VA due to a service related injury, which injury shortened his length of service. Given this assertion, it must also be determined whether in fact the Veteran has any service-connected disabilities that are compensably rated. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should obtain from the appropriate sources all of the Veteran's service personnel and treatment records, to include his enlistment contract and all documents pertaining to the circumstances of his discharge from service. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should also ascertain whether the Veteran is in receipt of VA disability compensation benefits for any service-related injury. Copies of all rating decisions should be associated with the Veteran's file. (If deemed appropriate, an electronic claims folder should be established.) 3. After completion of the above, and any other development as may be indicated by any response received as a consequence of the actions taken above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal remains denied, the appellant and his representative, if one is appointed, should be issued a supplemental statement of the case (SSOC), which contains notice of all relevant action taken on the claim since June 2014. The SSOC must contain notice of all appropriate laws and regulations governing potential entitlement to VA home loan benefits, to include pertinent provisions of 38 U.S.C.A. §§ 3701 and 3702. An appropriate period of time should be allowed for response. 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Jonathan Hager 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 Court. 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).