Citation Nr: 18147743 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-27 571A DATE: November 6, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to October 1964, with additional service in the Georgia National Guard. The Veteran died in March 2008, and the Appellant is his surviving spouse. This matter comes before the Board on appeal from a September 2011 rating decision. The Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2016. A transcript of the hearing is of record. The matter was previously before the Board in June 2016 and January 2018 when it was remanded for further development. The matter now returns to the Board for appellate consideration. 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The January 2018 Board remand instructed the RO to take further action to verify whether the Veteran was exposed to herbicides in Okinawa, Japan during service. Specifically, the RO was directed to follow up a September 2017 Defense Personnel Records Information and Retrieval System (DPRIS) response by contacting the Army Joint Service Records Research Center (JSRRC) and seek verification of the Veteran’s alleged exposure to Agent Orange while stationed in Okinawa, Japan, to include from June 1963 to October 1964. The record shows that the RO made three unsuccessful attempts to obtain a response from the JSRRC. A May 2018 Administrative decision from the Pension Management Center found that having followed all proper procedures to contact the JSRRC, and having exhausted all efforts, further attempt to contact the JSRRC would be futile and based on that, no additional response from the JSRRC is available. The decision also determined, without any other supporting documentation, that the JSRRC did not have additional information to provide. Documented efforts showed no reply from the JSRRC after three mailed attempts. The provisions of 38 C.F.R. § 3.159(c)(2) addresses the VA’s duty to assist the Veteran or Appellant in obtaining records in the custody of Federal departments or agencies. It mandates that VA will make as many requests as necessary to obtain relevant records, and that VA will only end its efforts to obtain records from a Federal department or agency if VA concludes that the records sought do not exist or that further efforts would be futile. The code further elaborates by stating cases in which VA may conclude no further action is required include those in which the Federal department or agency advises the VA that the requested records do not exist or the custodian does not have them. Here, the Board finds that even though the RO sent three letters to the JSRRC, there is no indication of record from the JSRRC that it does not have the requested records or that the requested records do not exist. As such, the matter must be remanded for further action by the RO in order to satisfy the directives of the January 2018 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). The matter is REMANDED for the following action: 1. Contact the JSRRC and seek verification based on JSRRC records, or lack thereof, of the Veteran’s alleged exposure to Agent Orange while stationed in Okinawa, Japan, to include from June 1963 to October 1964. The VA must make as many attempts as necessary to obtain a response from the JSRRC. 2. After completion of the above and any further development deemed necessary, readjudicate the Appellant’s claim. If the determination remains adverse, the Appellant and her representative should be furnished a supplemental statement of the case which includes a summary of all additional evidence received. The requisite period of time for a response should be afforded. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel