Citation Nr: 21066907 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-45 947 DATE: November 2, 2021 REMANDED Whether the character of the appellant's discharge for the period of service from March 1960 to September 1963 constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hand numbness is remanded. REASONS FOR REMAND The appellant served on active duty for training from September 11, 1959 to March 6, 1960 and received an honorable discharge. He also served on active duty from March 31, 1960 to September 28, 1963, and was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2017, the appellant testified before a Veterans Law Judge in a videoconference hearing. A transcript of the proceedings has been associated with the record. In June 2020, he was notified that the VLJ was no longer available to decide his appeal and was offered an additional hearing before a VLJ that would decide the case. He did not respond within 30 days, and there is no indication that the letter was returned to sender. Thus, the appellant is deemed to have waived the opportunity for a second hearing before a VLJ deciding his case. In September 2017, the Board denied the issues herein. The appellant appealed to the Court of Appeals for Veterans Claims (Court). The Board denial was vacated in an April 2020 Joint Motion for Remand (JMR). Specifically, the Court found that vacatur and remand was necessary to obtain Social Security Administration (SSA) records, the OIG report, and to determine whether a medical opinion on the issue of "insanity" was warranted. The issues returned to the Board for development in line with the terms of the JMR. In December 2020, the Board remanded the appeal for further development. In December 2020, the AOJ requested all available records from the SSA. The SSA replied that all records had been destroyed. Therefore, the Board finds that these records are unavailable. In July 2021, the AOJ obtained a medical opinion on the issue of insanity. 1. Whether the character of the appellant's discharge for the period of service from March 1960 to September 1963 constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. In a December 2020 decision, the Board remanded all the issues in this decision. With respect to this issue, the Board directed the RO to obtain the appellant's criminal history report which the VA Officer of Inspector General (OIG) referenced in a memorandum provided in response to a "VSC request for criminal reports and or lack thereof" from the Phoenix Veteran Service Representative. Specifically, the Board directed the RO to Obtain the 55-page criminal history report referenced in the December 2014 Decision Review Officer hearing and associate it with the claims file. If this report is unavailable, inform the appellant and his representative, and issue a formal finding of unavailability, including discussion of the steps taken to locate this document. All attempts to contact the appellant should be documented in the record. In December 2020, pursuant to the December 2020 Board remand, the AOJ requested the 55-page criminal history report which was cited by the Office of Inspector General (OIG). The Board notes that OIG report references "a Criminal History report concerning McCool revealed he was arrested and charged with the following offenses by civilian authorities while serving on active duty: 11 March 1962, Breach of Peace and 02 December 1963, Aggravated Robbery. McCool has a continued and extensive violent criminal history post military service. There are no indications of any racially motivated incidents listed in the 55-page criminal history pertaining to Veteran McCool." It is unclear from the report whether this report is a military personnel record, a civilian report; or whether the report pertains to only in-service criminal history or his post-service criminal history. In a May 2021 response, the responding office reported "pers/med (AR) is uploaded in VBMS," noting that the appellant's Army personnel and medical records were uploaded in the Veterans Benefits Management System. However, there were no attempts to contact the OIG for the report, or for the facts and circumstances related to the report. The Board errs when it fails to ensure substantial compliance with a Board remand. These records have not been associated with the claims folder. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds it necessary to remand this issue for the RO to complete its development. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for a back disability is remanded. 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to service connection for bilateral hand numbness is remanded. As the appellant is presently appealing the character of discharge from his second period of service, the Board finds that the remaining service connection issues here are inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, these issues are remanded for readjudication following the evidentiary development detailed above. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain a copy of all Office of Inspector General reports, including a complete copy of the November 2014 criminal history report, with supporting documents, and any other documents considered in connection with OIG's investigation that are not yet associated with the claims file. 2. Thereafter, the RO should take all necessary further appropriate action on these claims. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.