Citation Nr: 1802898 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-22 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1969 and reserve service from August 1969 to August 1971. He died in June 2011. The appellant in this case is his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2015, the appellant testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In July 2015, the Board remanded this claim for additional development. It has since been returned to for further appellate consideration. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain compliance with a prior Board remand and for additional development. First, remand is required to obtain compliance with a prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). In the July 2015 Board remand, the Board directed the RO to obtain all service personnel records (SPRs) and to provide those records to the appellant if obtained. Although SPRs were obtained, it does not appear that the RO provide these records to the appellant. This must be done on remand. Second, remand is required to attempt to obtain additional records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). The recently obtained records indicated that the Veteran did not service in Vietnam; rather, the records indicate that the Veteran's one year and 29 days of foreign and/or sea service correspond with his assignment in Hawaii. Absent evidence of Vietnam service, it cannot be presumed that he was exposed to an herbicide agent during service and service connection for the Veteran's fatal heart condition on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 would not be warranted. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). However, in a February 2017 correspondence, the appellant argued that the reason why the Veteran trained extensively immediately prior to being transferred to the reserves was due to his need to serve in Vietnam with the B-52 program. The Board notes that the Veteran had reserve service from August 1969 to August 1971 and a September 1970 Air Force Reserve Airmen Survey indicated that the Veteran was in ready status. The Board finds that additional evidentiary development is necessary, to include obtaining the Veteran's entire service records from the Veteran's period of service in the Air Force Reserve as they may contain information regarding any Vietnam service he may have had. Accordingly, the case is REMANDED for the following action: 1. Contact the Air Reserve Personnel Center and/or other appropriate repositories of records and obtain copies of the Veteran's complete service personnel records or any other documents that would document his duty stations during his reserve service. Document for the file what repositories were contacted and what documents were requested and why. The AOJ must only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the AOJ is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). All efforts must be documented in the record. 2. Provide the appellant with a copy of the Veteran's service personnel file records, in addition to his DD Form 214 and his service treatment records, in conformance with her May 2015 request. 3. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the appellant. After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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 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 2014). _________________________________________________ K. MILLIKAN 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) (2017).