Citation Nr: 1638631	
Decision Date: 09/29/16    Archive Date: 10/13/16

DOCKET NO.  10-37 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the U.S. Army from January 2004 to March 2005. He also had periods of active duty for training and inactive duty for training with the U.S. Army Reserve.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Hartford, Connecticut, Regional Office (RO). In January 2011, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In June 2011 and April 2014, the Board remanded the case to the RO for additional action.

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


REMAND

Remand is required to ensure compliance with the Board's prior remand directives. The RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). In its April 2014 Remand, the RO was directed that it "must attempt to obtain ALL of the [Veteran's] service personnel records through a request to the National Personnel Records Center (NPRC), the Army's Human Resources Command (HRC) in St. Louis, Missouri, the Appellant's Army Reserves Unit (the 226th Transportation Railway Operation Company) and any other appropriate agency." The Board further directed that, "As the [Veteran's] Army Reserve Unit did not respond to any previous letter in writing, the Unit must be specifically requested to do so. If no records are procured, the [RO] must make a Formal Finding of Unavailability and associate[] it with the claims file." The RO submitted an online response to the Defense Personnel Records Information Retrieval System (DPRIS) and contacted the HRC. The RO did not contact any of the other agencies listed in the Board's Remand and no Formal Finding of Unavailability was made.

Additionally, in the Board's Remand, it directed the RO to make a determination as to whether the Veteran's October 2009 discharge from the Army Reserve makes him ineligible to receive VA benefits. No such determination was made.

The case is REMANDED for the following action:

1.  Contact the NPRC, HRC, the Veteran's Reserve Unit (the 226th Transportation Railway Operation Company), and any other appropriate agency to attempt to obtain the Veteran's service personnel records. If relevant service personnel records remain unavailable, the RO must make a Formal Finding of Unavailability as to those records.

2.  Issue a formal administrative decision as to whether the Veteran's "under other than honorable conditions" discharge from the U.S. Army Reserve in October 2009 makes him ineligible to receive VA benefits.

3.  If the Veteran is eligible to receive VA benefits for any or all periods of service, and any new service treatment records have been added to the Veteran's file since his last VA examination, obtain an updated medical opinion which addresses whether the Veteran's low back disability was incurred in service.

4.  Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board.

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 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).



_________________________________________________
Vito A. Clementi
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).