Citation Nr: 1805164 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-18 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for a sleep disorder. ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Appellant served in the California Army National Guard from March 4, 1957 to March 1, 1959. Following his discharge from the Army National Guard, the Appellant completed a period of inactive reserve duty in the Army Reserves, and was discharged on February 28, 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction of this matter was subsequently transferred to the RO in Los Angeles, California. When this case was most recently before the Board in March 2017, the above-noted issues were remanded for additional development. The case has now been returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). REMAND While additional delay is unfortunate, the Board finds further development is required before the Appellant's claims are decided. When this case was previously before the Board in March 2017, the Board noted that to date, the RO had not obtained a DD-214, Certificate of Release or Discharge from Active Duty, from the Appellant or National Personnel Records Center (NPRC). In this respect, the Board notes a March 2014 VA Form 21-0820 wherein the Appellant acknowledged he did not have a DD-214, and had not served on active duty while in the National Guard or Reserves. Rather, the Appellant has submitted an NGB Form 22, which indicates he received a general discharge from the California Army National Guard in March 1959 based on his willful and continued absences from military duty. Pursuant to 38 C.F.R. § 3.4, VA compensation is payable to a veteran. Under 38 C.F.R. § 3.1, a "veteran" is defined as a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. Active military, naval, and air service is defined under 38 C.F.R. § 3.6 as active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Following the Board's March 2017 decision, a Personnel Information Exchange System (PIES) O50 request was initiated. However, in May 2017 the PIES responded that no service treatment records (STRs) or official military personnel files (OMPF) were available. Nonetheless, the PIES indicated additional development should be initiated to the California National Guard. Thereafter, requests for records were initiated to the California State Adjutant General's office in June and July 2017. On July 26, 2017 the California State Adjutant General responded with copies of the Appellant's March 1957 enlistment examination, as well as some additional OMPF records, which establish the Appellant's periods of active duty for training, as well as drill periods. In this case, it is clear the Appellant did not serve on active duty, and as such, for his service to constitute qualifying active service in accordance with 38 C.F.R. § 3.6, the evidence must indicate he became disabled as a result of a disease or injury incurred or aggravated in line of duty during his active duty for training period, or alternatively, that he became disabled as a result of an injury incurred or aggravated in the line of duty during his inactive duty for training periods. To date, the RO still has not drafted a formal finding of unavailability for the record indicating all efforts to obtain records corroborating the Appellant's qualifying service have been exhausted and additional attempts would be futile. The Board previously advised the RO that this should be accomplished prior to re-certifying the case in the March 2017 decision. M21-1, Part III, Subpart ii, Chapter 6, Section A, Subsection 2 specifically indicates a formal finding of unavailability must be completed when information needed to verify qualifying service cannot be obtained. Moreover, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the development requested in the March 2017 Board decision has not been completed, substantial compliance with the remand has not been achieved. As such, this case must unfortunately again be remanded for additional development. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Request the Appellant's complete official military personnel file (OMPF) and service treatment records (STRs) from any other appropriate and available source, to determine whether the Appellant had qualifying service. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Appellant notified in accordance with 38 C.F.R. § 3.159(e) and M21-1, Part III, Subpart iii, Chapter 2, Section C and D. If qualifying service cannot be verified a formal finding of unavailability must be completed for the record in accordance with M21-1, Part III, Subpart ii, Chapter 6, Section A, Subsection 2. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant's issues on appeal, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). 3. Finally, undertake any other indicated development, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Appellant's satisfaction, the Appellant and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).