Citation Nr: 20005673
Decision Date: 01/23/20	Archive Date: 01/23/20

DOCKET NO. 08-33 805A
DATE: January 23, 2020

REMANDED

The issue of service connection for a urinary disorder is remanded.

REASONS FOR REMAND

The Veteran served in the U.S. Air Force from March 1971 to March 1975. He had additional service in the U.S. Air Force Reserve.

In June 2009, the Veteran was afforded a hearing at the VA Central Office before the undersigned Veterans Law Judge.

The issue of service connection for a urinary disorder is remanded due to a violation of the Stegall rule, as explained below.

The matters are REMANDED for the following action:

1. Reason for the remand:

Documents from August 2015 indicate that the Veteran’s paper file was lost and Board remands in August 2015 and October 2017 expressly directed the RO to complete all procedures for a lost VA as directed by the M21-1 and to document each step in the file. There is no evidence that this procedure has been completed. Following the October 2017 Board remand, the RO made electronic DPRIS and PIES requests. 

The courts have held that although VA manuals like the M21-1 may not be in all cases be binding on an agency, the Board may not simply ignore the Secretary’s guidance on an issue. See 38 C.F.R. § 19.5 (“In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs.”); Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). 

It has also been held that “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Court added that the Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. Id. 

In this matter, the Board must provide a more detailed statement of reasons and bases which can be supported under compliance with the directives as stated in the M21-1 for lost files.  

2. Complete all procedures as stated in the M21-1 for lost paper files and rebuilding lost files. This includes the sections on Lost Paper Claims Folders, Lost NODs, etc. 

Each step of the procedure MUST be documented in the Veteran’s file. 

3. AFTER COMPLETION OF THE ABOVE, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board.

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. E. Miller, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.