Citation Nr: 18155761 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 10-04 180 DATE: December 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 October 1960 to October 1964. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2012, the appellant’s son and her sister testified before a Veterans Law Judge at a live videoconference Board Hearing. A transcript of the hearing is of record. This matter was previously before the Board in November 2012 and February 2015, both of which were remanded for further development. The Board notes that there has not been substantial compliance with its February 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, the Board finds that another remand is necessary. Entitlement to service connection for the cause of the Veteran's death is remanded. The Board finds that further development of the evidence is required prior to adjudicating the appellant’s service connection claim for the Veteran’s cause of death. The appellant contends that the Veteran’s cause of death was due to in-service exposure to herbicides and/or radiation. During the appeal period, the appellant has contended that the VA has not assisted her in obtaining corroborating evidence regarding the Veteran’s possible in-service exposure to herbicides and/or radiation. As noted above, this case was previously remanded in November 2012 and February 2015, to obtain corroborating records regarding the Veteran’s possible exposures. Specifically, in the February 2015 remand, it was found that inquiries regarding radiation exposure from sources other than nuclear testing should be directed to the Radiation Program at the Air Force Medical Support Agency (AFMSA). Therefore, the RO was instructed as follows: (1) contact the Chief, Radiation Program, Air Force Medical Support Agency to request any records associated with the reported radiation exposure, and (2) if the records suggest radiation exposure, refer the matter to the Under Secretary for Benefits for review. In response to the remand, the RO sent two request letters to the Chief, AFMSA, in July 2015 and September 2015; both of which went unanswered. In October 2015, the appellant’s son contacted a separate agency, the Defense Health Agency (DHA), to request records only regarding the Veteran’s exposure to Agent Orange during service. A response from DHA was given to the appellant’s son in November 2015, which stated that DHA only maintains records that date back to 1985. This letter was forwarded to the RO by the appellant’s representative, and attached in the claims file. Subsequently, a January 2016 Supplemental Statement of the Case (SSOC) was issued, denying the appellant’s claim based on lack of corroborating evidence of exposure. The RO indicated that they contacted the AFMSA on two separate occasions, and “received their response dated November 23, 2015 (forwarded from the Military Order of the Purple Heart) on November 24, 2015. The response states that they do not have any records as their records only date back to 1985.” See SSOC, January 2016. However, after review of the claims file, the Board finds that the statement made by the RO in the January 2016 SSOC, stating that they have received a response from the AFMSA, is incorrect; and thus, reliance on that as a basis for lack of corroboration of radiation exposure is not appropriate. In fact, the referenced document is that of the DHA response issued to the appellant’s son based on his personal inquiry regarding the Veteran’s possible in-service herbicide exposure; and not from the AFMSA regarding radiation exposure, per the remand directive. Furthermore, the record reveals that the requested records from the AFMSA regarding radiation exposure have not been obtained at all; and there have been no other requests made to the AFMSA since September 2015, nor has there been a formal finding of unavailability issued. Therefore, based on the above, there has not been substantial compliance under Stegall. Applicable VA law provides that the RO should take all necessary efforts to obtain the records from AFMSA; and if no such records are located, and once all avenues are exhausted, a formal finding of unavailability should be provided to the appellant. See 38 C.F.R. § 3.159(c)(2) and (e). Accordingly, the Board finds that a remand is necessary to obtain the relevant records from AFMSA, or if the records do not exist, to obtain a formal finding of unavailability. The matter is REMANDED for the following action: 1. Contact the Chief, Radiation Program, Air Force Medical Support Agency to request and obtain any records associated with the Veteran’s reported radiation exposure. 2. If the requested records suggest that the Veteran had radiation exposure, refer the matter to the Under Secretary for Benefits for review. 3. If the requested records do not exist, issue a formal finding of availability, and provide a copy to the appellant and associate with the claims file. 38 C.F.R. § 3.159(c)(2) and (e). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel