Citation Nr: 21070408 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-29 149 DATE: November 23, 2021 REMANDED Entitlement to service connection for Meniere's syndrome is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1980 to May 1983. These matters come before the Board of Veterans Appeals (Board) on appeal from an April 2013 Rating Decision of a Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in May 2017. A transcript of that hearing has been included in the claims file. On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), was signed into law. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. Here, with respect to the issues addressed herein, the Veteran has not opted-in to VA's test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review his appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to service connection for Meniere's syndrome and a TBI. He alleges that these disabilities were caused by an in-service assault which resulted in head trauma. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. These claims were initially denied by the Board in a September 2018 decision. The Veteran then filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Veteran's attorney and VA's General Counsel filed a Joint Motion for Remand (Joint Motion) with the Court to vacate the Board's decision insofar as it denied entitlement to service connection for Meniere's syndrome and a TBI. Specifically, the Joint Motion stipulated that the Board failed to ensure that VA satisfied its duty to assist in obtaining the Veteran's treatment records at VA facilities dating from June 2010 to the present, and failed to address the Veteran's explicit request for VA to obtain records from the Inspector General's investigation of his 1981 in-service assault. The Court granted the parties' Joint Motion in August 2019 and the issues were remanded to the Board for further proceedings consistent with the Joint Motion. In a July 2020 decision, the Board remanded the matters for development consistent with the Joint Motion. Specifically, the July 2020 Board decision directed that the RO obtain all outstanding VA treatment records as well as records from the Inspector General's investigation of his 1981 in-service assault. VA treatment records dating from June 2010 to the present were obtained and associated with the claims file in November 2020 and July 2021. In September 2020 and October 2020, the RO submitted Personnel Information Exchange System (PIES) requests seeking information concerning any Inspector General's investigations related to assaults during the Veteran's period of active-duty service, to include an assault that took place outside of Schofield Barracks, Hawaii, and another assault in Korea. A January 2021 response indicated that all available records had been uploaded to the Veterans Benefits Management System (VBMS). In correspondence received in February 2021, the Veteran again requested that VA contact the Inspector General in Korea or any of the former servicemembers of the Headquarters Battery of the 3-13 Field Artillery Battalion, 25th Infantry Division, in 1980 identified by the Veteran to be aware of the assault. A February 2021 Deferred Rating Decision determined that the request for Inspector General investigation records should not have made through PIES, and instead directed that the request be made to the Army's Judge Advocate General's (JAG) Corps, the Veteran's unit, or the Inspector General's office. In correspondences dated in March 2021, April 2021, and May 2021, the RO requested the relevant Inspector General investigation records through the U.S. Army Legal Services Agency (USALSA). These requests indicated that if the relevant records had been destroyed or were otherwise unavailable, then a negative response from USALSA was required. However, no response was ever received from USALSA. Although the Veteran was provided with correspondences notifying him that VA was attempting to obtain the relevant records from USALSA, no Formal Finding of Unavailability memorandum was ever prepared. When requesting relevant records from a federal department or agency, the VA is obliged to continue to attempt to obtain the records until they are located, unless the records do not exist, or further attempts would be futile. See 38 U.S.C. § 5103A(c). In this case, no response from USALSA was received, and it appears that the RO made no additional efforts to contact the other entities identified in the February 2021 Deferred Rating Decision as possible repositories for the Inspector General's investigation records. As such, on remand, the RO must exhaust all efforts in finding the relevant federal records, to include the Army's Judge Advocate General's (JAG) Corps, the Veteran's unit, and/or the Army Criminal Investigation Division (CID). Once this has been completed, and if the relevant Inspector General records are still unavailable, then this should be explicitly stated in a Formal Finding of Unavailability that is generated on remand. See 38 U.S.C. § 5103A; 38 C.F.R. § 19.9; Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the Joint Motion to Remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the Joint Motion for Remand or explain why the terms will not be fulfilled). The matters are REMANDED for the following action: (Continued on the next page) 1. Request any Inspector General investigation records related to the assaults alleged by the Veteran outside of Schofield Barracks, Hawaii, and in Korea, while he was attached to the Headquarters Battery of the 3-13 Field Artillery Battalion, 25th Infantry Division, during his period of active-duty service from May 1980 to May 1983. These requests should be made to the Army's Judge Advocate General's (JAG) Corps, the Veteran's unit, the Army Criminal Investigation Division (CID), the Army Legal Services Agency (USALSA), and/or any other appropriate service entity. These entities must be notified that a negative response is required in the event that the relevant records have been destroyed or are otherwise unavailable. If any of the pertinent records are not available, or if the search for the records yields negative results, then that fact should clearly be documented in the claim's file, and the claimant notified in writing. Because these are federal records, if they cannot be secured, then a written Formal Finding of Unavailability memorandum must be prepared and added to the claim's file, and the Veteran offered an opportunity to respond. This memorandum should document the efforts undertaken to secure the relevant records and explain whether they are unavailable or simply do not exist, or why further attempts to obtain them would be futile. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.