Citation Nr: 20046734
Decision Date: 07/13/20	Archive Date: 07/13/20

DOCKET NO. 16-06 713
DATE: July 13, 2020

REMANDED

Whether the appellant's character of discharge is a bar to the receipt of VA compensation benefits is remanded.

REASONS FOR REMAND

The appellant had active service from July 1973 to April 1976.  He received an other than honorable (OTH) discharge.

The Board remanded this claim in May 2019, directing the AOJ to “seek service treatment records from any and all appropriate sources.”  However, no attempt to procure any additional records appears to have been undertaken as no such efforts were documented in the claims file or otherwise indicated in the April 2020 supplemental statement of the case (SSOC).  

The appellant, in essence, asserts that he is entitled to an exception to the regulatory bar of VA benefits because his discharge misconduct was not willful due to his mental health state at the time of the underlying infractions leading to his separation.  See i.e. December 2018 Board hearing transcript (“he had presented with a mental illness that went untreated at the time”).  In support of his claim, the appellant provided medical documentation from January 1976 which reflected an emergency room visit for a “nervous breakdown due to alcohol abuse.”  See January 1976 Navy Regional Medical Center.  This relevant medical record is not part of the personnel files obtained by the VA in conjunction with the appellant’s claim.  Thus, additional attempts to seek all potentially outstanding active-duty treatment records must be undertaken as previously directed in the May 2019 Board remand.  

A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.  Where the remand orders are not complied with, the Board errs in failing to insure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Because there was not substantial compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claims and the promulgation of an SSOC if the claims remained denied.  38 C.F.R. §§ 19.9, 19.31(c).  Accordingly, the Board must remand the case again for compliance with its prior Remand.

The matters are REMANDED for the following action:

1. Obtain the Veteran's complete service treatment records, to include any service treatment records from the Navy Regional Medical Center not previously associated with the claims file.  

Document all requests for information as well as all responses in the claims file.

2. Should the claim remain denied readjudicate and issue an SSOC.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Marcus J. Colicelli

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.