Citation Nr: 18146500 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-26 599 DATE: October 31, 2018 REMANDED Entitlement to service connection for arteriosclerotic heart disease is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1950 to April 1954, with additional service in the Rhode Island Air National Guard from 1955 to 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an August 2015 decision, the Board denied entitlement to service connection for ischemic heart disease. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), and in an April 2017 Memorandum Decision, the Court vacated and remanded the Veteran’s claim. The appeal was before the Board in September 2017. At that time, the claim was remanded for additional development. The case has now been returned to the Board for further appellate action. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900(c); 38 U.S.C. §7107(a)(2). Entitlement to a service connection for arteriosclerotic heart disease is remanded. The September 2017 remand instructed the AOJ to review the Veteran’s personnel records and then prepare a list of the Veteran’s dates of ACDUTRA and INACDUTRA service. Following completion of this step, the AOJ was instructed to obtain an addendum opinion regarding the etiology of the Veteran’s heart condition, to include a copy of the remand and the list of ACDUTRA and INACDUTRA dates the AOJ was to have prepared previously. These instructions are not reflected in the record as having been followed. The Board notes that the AOJ requested a list of dates of ACDUTRA and INACDUTRA service in December 2017. However, the AOJ was instructed on remand to prepare a list of dates after reviewing the Veteran’s personnel records, which the evidence indicates the AOJ received instead of a list itself. After obtaining these personnel records, there is no evidence the AOJ actually reviewed the records and prepared a list of the Veteran’s dates of ACDUTRA and INACDUTRA service, instead reporting to the May 2018 Compensation & Pension examiner in its instructions that “no actual list of dates is found”. However, no list of dates could have been found by the AOJ until the AOJ itself had prepared such a list. It is also noted on the May 2018 Compensation & Pension Exam by the examiner that, “a list of ACDUTRA dates is not found beyond the direction to presume the Veteran was on ACDUTRA from June 17, 1983, through June 24, 1983”. Per the remand instructions, such a list was to have been prepared before any medical professional opined on the claims file. Further, the Board acknowledges that the AOJ began the process of attempting to obtain pay records from the Defense Finance Service (DFAS) in February of 2018 but it appears that the AOJ did not complete this process. On remand, the AOJ should complete the process of obtaining these records from the DFAS in order to compile its list of ACDUTRA and INACDUTRA dates. The Court has held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, remand is again necessary to ensure that the AOJ prepares a list of the Veteran’s dates of ACDUTRA and INACDUTRA service. Further, an addendum opinion must be obtained regarding ALL the Veteran’s dates of ACDUTRA and INACDUTRA service, to be evaluated by a medical professional only after the AOJ has compiled such a list. The matter is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Complete the process of obtaining the Veteran’s pay records from the DFAS. After obtaining them, review the Veteran’s personnel records and pay records and prepare a list of the Veteran’s dates of ACDUTRA and INACDUTRA service. In preparing this list, the RO must presume that the Veteran was on ACDUTRA from June 17, 1983, through June 24, 1983. 2. Following completion of step one, obtain an addendum opinion regarding the etiology of the Veteran’s heart condition from the medical professional who performed the May 2018 Compensation & Pension Exam, or, if that professional is not available, from another similarly qualified VA clinician. The medical professional must be provided with and review the entire claims file, to include a copy of this remand and the list of the dates stipulating when the Veteran had ACDUTRA and INACDUTRA service. The medical professional is informed that the Veteran’s service treatment records from his active duty service (from May 1950 to May 1954) are unavailable. 3. Following a review of the evidence of record, to include the Veteran’s lay statements, the medical professional must indicate whether the list of service dates alters his prior opinion, and if so, the way in which it is altered. 4. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk